m^ 


NDLE  WITH  CAR 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ESSAYS 

IN 

LEGAL   ETHICS 


BY 

GEO.  W.  WARVELLE,  LL.  D. 

AUTHOR    OF    A    TREATISE    ON     ABSTRACTS   OF    TITLE  ;     THE 

LAW    OF    VENDOR    AND    PURCHASER  ;    PRINCIPLES 

OF    REAL    PROPERTY,    ETC. 


CHICAGO 

CALLAGHAN  &  COMPANY 

1902 


Copyright  1902 
By  GEO.  W.  WARVELLE 


Brown-Cooper  Typesetting  Co.,    Chicagft. 


^ 

^ 
^ 


Co 
HON.  THOMAS   DENT, 

OF    CHICAGO,  ILI.., 

wl}0,  in  tjts  life  anb  ctjaracter,  Ijas  so  fully  expressed 
t^e  professional  ibeal,  t^is  book  is  inscribeb  by 

THE   AUTHOR. 


PREFACE. 

This  little  book  is  a  compend  of  lectures  delivered 
at  various  times  to  my  own  students  and  has  been 
produced  in  response  to  numerous  requests  for  pub- 
lication. I  have  endeavored  to  treat  the  subject  as 
an  integral  part  of  undergraduate  study  and  to  con- 
fine it  within  the  lines  of  the  regular  law  course. 
But  little  space  has  been  devoted  to  ethical  theory, 
the  design  of  the  work  being  rather  an  exposition 
of  ethical  precept,  and  only  the  practical  phases  of 
accepted  modern  theories  have  been  presented.  To 
a  large  extent  professional  conduct,  like  all  other 
forms  of  ethical  affirmation,  is  a  matter  of  opinion, 
yet,  in  many  of  its  manifestations,  we  may  discern 
underlying  principles  that  seem  to  compel  the  rule. 
Whenever  possible  I  have  endeavored  to  show  this 
principle  in  connection  with  the  rule  that  is  founded 
upon  it.  In  stating  a  rule  or  precept  I  have  uni- 
formly presented  that  which  seems  to  have  re- 
ceived the  largest  amount  of  adherence  and  when- 
ever opportunity  offered  have  reinforced  same  by 
a  citation  of  judicial  authority.     These  latter  op- 


vi  PREFACE. 

portunities  have  necessarily  been  few.  In  the  main, 
the  ethical  code  of  the  legal  profession  has  not  been 
the  subject  of  either  legislative  or  judicial  action, 
nor  can  it  ever  become  such. 

I  do  not  offer  this  book  as  a  treatise  on  moral 
duties,  nor  do  I  assume  the  character  of  a  teacher 
of  morals.  It  purports  to  be,  and  is,  nothing  more 
than  a  series  of  brief  suggestions  relative  to  pro- 
fessional conduct,  and  as  such  it  is  submitted  to 
those  for  whom  the  subject  may  possess  interest. 

G.  W.  W. 

Chicago,  February  i,  1902. 


CONTENTS. 


[the  references  are  to  the  pages.] 
CHAPTER  I. 

PRELIMINARY    OBSERVATIONS. 

Introduction — Primary  Conceptions — Ethics  defined — 
Derivation — Fundamental  notions — General  ethical 
theories — Opposing  schools  of  ethical  thought — 
Law  and  morals  distinguished — Morals  and  ethics 
distinguished — The  standard  of  morals;  conscience; 
public  opinion — Obedience  to  law  a  moral  duty — 
Authority  of  public  opinion — Legal  ethics,  defined 
and  distinguished — Scope  and  classification  of  pro- 
fessional duty  I 

CHAPTER  II. 

THE    OFFICE    OF   THE    ADVOCATE. 

Generally  considered — The  essential  principle  of  ad- 
vocacy and  the  conditions  that  support  it^-Origin 
of  advocacy  and  character  of  early  practitioners — 
Early  concepts  of  professional  duty  and  their  effect 
on  later  developments^Division  of  legal  labor  and 
its  efifect  on  professional  ethics — General  duties  of 
the  advocate  and  immemorial  obligations — Connec- 
tion and  professional  relation  of  the  bench  and  bar.  .     23 

CHAPTER  III. 

THE  ADVOCATE  AND  THE  COURTS. 

Generally  considered — The  summary  jurisdiction  of 
courts — Methods  of  summary  discipline — Nature  of 


CONTENTS. 

disciplinary  power — Effect  of  discipline  on  the  legal 
rights  of  the  citizen — Grounds  for  discipline — Disci- 
pline for  unofficial  misconduct — Misconduct  without 
discipline    39 


CHAPTER  IV. 

PROMOTION    AND    PUBLICITY. 

Generally  considered — How  may  the  lawyer  reach  the 
public — Personal  solicitation — Advertising,  when 
and  how — Professional  cards,  and  how  they  may 
be  used — Newspaper  advertising — Anonymous  an- 
nouncements— Divorces — Bad  debts — Letters  and 
circulars — Self    praise 51 

CHAPTER  V. 

COMPENSATION. 

Principles  governing  the  right  of  compensation — Theory 
of  compensation  in  England  and  America — Gratu- 
itous service — Special  agreements — Extent  of  com- 
pensation— Considerations  affecting  the  extent  of 
compensation — Contingent  fees — Right  of  compen- 
sation  of  assigned  counsel   of  poor  person ^2 

CHAPTER  VI. 

GENERAL    PRACTICE. 

Defined — The  place  of  morality  in  practice — The  duty 
of  veracity — The  client  and  his  cause — Production 
of  testimony — Examination  of  w^itnesses — Instruct- 
ing and  advising  witnesses — Attorneys  as  witnesses 
— Addressing  the  jury — Tampering  with  records — 
Abuse  of  process — Duty  to  third  persons 96 


CONTENTS.  ix 

CHAPTER  VII. 

CRIMINAL    PRACTICE. 

Generally  considered — The  retainer — Duty  to  persons 
accused — Knowledge  of  prisoner's  guilt — General 
duties  in  defense — The  prosecution  of  criminals — 
Duty  of  persons  officially  charged  with  prosecu- 
tion— Propriety  of  private  counsel  assisting  in  prose- 
cutions— Dangers   of   criminal    practice 128 

CHAPTER  VIII. 

RELATIONS    WITH    CLIENT. 

General  observations — The  relation  of  attorney  and 
client — Attorney's  authority,  powers  and  duties — 
Liabilities  and  disabilities  of  the  relation — Profes- 
sional opinions  and  advice — Refusal  of  retainer — 
Conduct  of  cases — Representing  both  sides — Priv- 
ileged communications  —  Adverse  employment  — 
Withdrawals — Inconsistent  positions — Money  lost 
by  attorney  or  detained  by  him — Right  of  client  to 
discharge  his   attorney 145 

CHAPTER  IX. 
RELATIONS   WITH    COURT. 

Nature  of  the  judicial  office — Conduct  in  court — Con- 
duct out  of  court — Influencing  judges — Criticism  of 
judges — Deceiving  the  court — Misstating  law  or 
facts    181 

CHAPTER  X. 
RELATIONS    WITH    THE    BAR. 

Character  of  the  relation — Professional  courtesy — Re- 
spect for  age — Observance  of  agreements — Services 


X  CONTENTS. 

for    attorneys — Interference — Substitution    of    attor- 
neys— Conclusion    194 

APPENDIX. 

A.  Sir   Matthew   Hale's    Rules 207 

B.  Chivalry   of   Advocacy 210 

C.  Defense  of    Courvoisier 211 

D.  Legal    Commercialism 216 

E.  Ethics  a  Requirement  of  Legal  Education 217 


TABLE    OF    CASES. 


[THE  REFERENCES  ARE  TO  THE   SECTIONS.] 


Anderson  v.  Bosworth,  63. 
Arden  v.  Patterson,  143. 
Arrington  v.  Arrington,  2.^T. 
Austin,  case  of,  305. 

Babbitt  v.  Bumpus,  135. 
Baker  v.  State,  309. 
Ballard  v.  Carr,  146. 
Balsbaugh  v.  Fraser,  140. 
Bank  v.  Ward,  207. 
Barnes  v.  Harris,  271. 
Bathgate  v.  Haskin,  129. 
Beck  V.  Bellamy,  240. 
Beene  v.  State,  yz- 
Bigler  v.  Reyher,  271. 
Bigelow  V.  Toy,  243. 
Biggs,  ex  parte,  62,  69. 
Bills  V.  Polk,  134. 
Bingham  v.  Salene,  127. 
Boone,  in  re,  73,  272,  2yT,  286. 
Boylan  v.  Holt,  141. 
Bradley  v.  Fisher,  73,302,  308. 
Britton  v.  Lorenz,  275. 
Brown,  in  re,  308. 
Brule,  in  re,  188. 
Bumham  v.  Heselton,  128. 
Burns  v.  Allen,  71. 
Burr,  ex  parte,  64. 

Cain  V.  Warford,  146. 
Cairo,    etc.,    R.    R.    Co.    v. 
Koerner,  278,  279. 


Chester    County    v.    Barber, 

146. 
Chicago  Building  Society  v. 

Haas,  283,  285. 
Cole,  ex  parte,  TZ- 
Coleman  v.  Billings,  145. 
Commonwealth  v.  Perry,  91. 
Conway  County  v.   Ry.  Co., 

242. 
Cook  V.  Mackrell,  123. 
Cooper  V.  Hamilton,  119,  122, 

267. 

Davis  V.  Nat.  Bank,  156. 
Davis  V.  Hall,  283. 
Dickson  v.  Wright,  243. 
Duke  V.  Harper,  292. 
Dundee  Mtg.  Co.  v.  Hughes, 
207. 

Ector  V.  Wiggins,  122. 
Edwards  v.  Edwards,  243. 
Eggleston   v.  Boardman,  131, 

132,  13s,  250. 
Eldridge,  matter  of,  183. 
Elmore  v.  Johnson,  127,  128, 

131. 

Fairfield  Bar  v.  Taylor,  277. 
Forer  v.  People,  91. 
Frazier  v.  Parks,  241. 
Frear  v.  Drinker,  192. 


TABLE    OF    CASES. 


[THE  REFERENCES  AR 

Gale,  in  re,  309. 
Gambert  v.  Hart,  246. 
Garland,  ex  parte,  62. 
Gilbert  v.  Williams,  247. 
Gilbert  v.  Welsch,  289. 
Goltra  V.  Wolcott,  276. 
Goodenough  v.  Spencer,  258. 
Goodwin's  Appeal,  275. 
Graydon  v.  Stokes,  322. 
Green  v.  Milbank,  250. 
Gulic  V.  Gulic,  275. 

Haight  V.  Moore,  251. 
Halaska  v.  Cotzhausen,  135, 

Hallam  v.  Hallam,  123. 
Hatch  V.  Fogarty,  277. 
Haverty  v.  Haverty,  284. 
Henienway  v.  Smith,  271. 
Henderson,  in  re,  309. 
Henry  v.  Vance    293. 
Hillegass  v.  Bender,  242. 
House  V.  White,  IS4- 
Howe  V.  Lawrence,  284. 
Huson,  matter  of,  70. 
Hutchinson  v.  Stephens,  160. 

Jackson  v.  State,  69. 
Johnson      v.      Whiteside 
County,  152,  153- 

Kaut  V.  Kessler,  275. 
Kelly  V.  Wright,  243. 
Kersey  v.  Garton,  134. 
Kisling  V.  Shaw,  128. 
Knox  V.  Randall,  325. 

Lamar   Ins.   Co.  v.   Pennell, 
131. 


E  TO  THE   SECTIONS.] 

Lawall  V.  Groman,  239,  267. 
Lecatt  V.  Sallee,  128,  131. 
Lengsfield     v.     Richardson, 

275- 
Louisville,  etc.,  R.  R.  Co.  v. 
Reynolds,  135. 

Maddux  v.  Bevan,  243. 
Mandeville  v.  Reynolds,  243. 
Marbourg  v.  Smith,  243. 
Mayer  v.  Blease.  242. 
McDonald  v.  R.  R.  Co.,  146. 
McMahon  v.  Smith,  251. 
Mills  case,  75. 
Moore  v.  Robinson,  292. 
Morgan  v.  Roberts,  192. 

Nave  V.  Baird,  249. 
Newkirk  v.  Cone,  146. 
Nichells  v.  Nichells,  278,  283. 
Norwood    V.    Harness,    288, 
289. 

Ogden  V.  Devlin,  325. 
Ohlquist  V.  Farwell,  284. 
Orman  v.  State,  275. 
Orr  V.  Tanner,  71. 

Parker  v.  Parker,  277. 
Paschal,  in  re,  325. 
Pfister  V.  Wade,  243. 
Phillips  V.  Dobbins,  243. 
Pickett  V.  Bank,  243. 
People  V.  Green,  64. 
People  V.  Allison,  70,  74. 
People  V.  Appleton,  70,  75. 
People   V.    Barker,    72,,    271, 
272. 


TABLE    OF    CASES. 


[the  references  are  to  the  sections.] 


People  V. 
People  V. 

102. 

People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
People  V. 
Pryor,  in 


Gillson,  91. 
MacCabe,  92,  100, 

Goodrich,  99,  103. 
Brown,  103. 
Smith,  196. 
Moutray,  201. 
Hurst,  233. 
Atkinson,  272. 
Mahon,  275. 
VanAlstine,  275. 
Ryalls,  290. 
Palmer,  291. 
Beattie,  309. 
re,  297. 


Quint  V.  Mining  Co.,  292. 

Randall's  case,  75. 
Roberts  v.  Nelson,  242. 
Robinson,  ex  parte.  69. 
Robinson  v.  Murphy,  242. 
Romberg  v.  Hughes,  276. 
Ross  V.  Payson,  128. 
Ross  V.  Demoss,  193. 
Rowe  V.  Yuba  County,  153. 
Ruhstrat  v.  People,  92. 

Savin,  ex  parte,  188. 
Schamp  v.  Schenck,  130. 
Scobey  v.  Ross,  292. 
Selover  v.  Bryant,  135. 
Sercombe,  ex  parte,  64,  75. 
Simpson  v.  Brown,  283. 
Sheldon  v.  Riesedorph,  241. 
Sherman  v.  Scott,  275. 
Skillen  v.  Wallace,  246, 
Smith  V.  Ry.  Co.,  287. 
Spinks  V.  Davis,  277. 


Staats,  ex  parte,  63. 
Stanton  v.  Embrey,  137. 
State  V.  Kirke,  64. 
State  V.  Winton,  69. 
State  V.  McChesney,  275. 
State  V.  Anderson,  305. 
Stearns  v.  Field,  171. 
Steinman,  ex  parte,  304,  305. 
Stevens  v.  Walker,  245. 

Tancre  v.  Reynolds,  254. 

Temple,  in  re,  290. 

Tenney  v.   Berger,  278,  282, 

284. 
Thompson  v.  Reynolds,  145. 
Treadwell,  in  re,  290. 

United  States  v.  Coffin,  128. 

Valentine  v.  Stewart,  277. 
Vickery  v.  McClellan,  244. 
Vilas  V.  Downer,  137. 

Wadhams  v.  Gay,  243. 
Wailes  v.  Brown,  123. 
Walden  v.  Bolton,  243. 
Wall,  ex  parte,  62,  69,  309. 
Ward  v.  Roy,  241. 
Wassel  V.  Reardon,  267. 
Wayne    County    v.    Waller, 

153. 
Wetherbee  v.  Fitch,  243. 
Whipple  V.  Barton,  254. 
Whitcomb's  case,  62. 
White  V.  Johnson,  241. 
Wiley  V.  Mahood,  243. 
Williams  v.  Williams,  289. 
Wright  V.  Baldwin,  123. 

Zeigler  v.  Hughes,  251. 


ESSAYS   IN    LEGAL  ETHICS 


CHAPTER  I. 
PRELIMINARY  OBSERVATIONS. 

Introduction — Primary  Conceptions — Ethics  defined — Deri- 
vation— Fundamental  notions — General  ethical  theo- 
ries— Opposing  schools  of  ethical  thought — Law  and 
morals  distinguished  —  Morals  and  ethics  distin- 
guished— The  standard  of  morals ;  conscience ;  public 
opinion — Obedience  to  law  a  moral  duty — Authority 
of  public  opinion — Legal  ethics,  defined  and  distin- 
guished— Scope  and  classification  of  professional  duty. 

I.  Introduction.  It  has  long  been  customary, 
for  writers  of  books  intended  for  the  use  of 
students  of  the  law,  to  refer  in  a  vague  and 
general  way  to  a  certain  abstraction,  which,  for 
want  of  a  better  name,  finally  came  to  be  called 
''legal  ethics."  Not  infrequently  these  WTiters,  by 
the  employment  of  concrete  examples,  have  endeav- 
ored to  explain  their  conceptions  of  the  character 
of  this  indefinite  quantity,  and  from  these  examples 
we  find  that  the  term  is  now  employed  to  connote 
the  ideas  that  are  ordinarily  involved  in  the  word 
duty.  In  other  words,  that  it  is  a  compendious 
expression  indicative  of  what,  under  given  circum- 
stances, should  or  should  not  be  done,  and,  by  some 

1 


i  ESSAYS    IN   LEGAL    ETHICS. 

writers,  its  meaning-  seems  to  be  further  extended 
so  as  to  include  the  reasons  which  underHe  such 
action  or  forbearance. 

2.  Again,  we  often  hear  the  actions  of  prac- 
titioners condemned  as  being  "contrary  to  the 
ethics  of  the  profession,"  and  occasionally  attorneys 
are  suspended  from  practice,  or  disbarred,  not  for 
the  infraction  of  any  law,  but  for  a  violation  of 
"professional  ethics,"  and  this  seems  to  mean,  when 
translated  into  the  vernacular,  "conduct  unbecom- 
ing a  lawyer  and  a  gentleman."  It  would  appear, 
therefore,  that  two  phrases  are  current  in  profes- 
sional circles  which  indicate  tlie  same  thing,  i.  e., 
conduct;  and  while  the  writer's  own  judgment 
would  have  led  him  to  adopt  as  a  title  for  this 
work  the  term  "professional  ethics,"  as  more  clearly 
indicative  of  what  is  really  meant,  yet  the  first  men- 
tioned expression,  having  become  imbedded  in  court 
rules  and  judicial  decisions,  has  been  chosen  as  the 
one  in  more  popular  use. 

3.  For  many  years  the  importance  of  this 
subject,  as  a  special  undergraduate  study,  has  been 
urged  by  learned  and  influential  law3^ers  and  legal 
educators,*  and,  as  the  study  of  Moral  Philosophy 
obtains  a  place  in  the  curriculum  of  every  literary 
college,  so,  it  is  contended,  the  study  of  Legal  Ethics 
should  be  given  a  distinct  position  in  the  courses  of 
the  law  school.     The  result  of  this  agitation  has 

1  See,  Rep.  Committee  on  Legal  Education  to  Am.  Bar 
Assn,  1895,  p.  16. 


PRELIMINARY    OBSERVATIONS.  3 

been  that,  in  many  states,  legal  ethics  is  now  a 
required  study,  while  it  is  supposed  to  receive  more 
or  less  attention  in  every  state. 

4.  Ethics  defined.  Before  attempting  to  dis- 
cuss our  subject  it  may  be  well  for  us  to  ascer- 
tain, if  possible,  just  what  is  meant  by  the  general 
term  "ethics,"  to  which,  with  doubtful  propriety, 
we  have  prefixed  the  qualifying  word  "legal." 
This,  however,  will  be  a  matter  of  considerable 
difficulty ;  indeed,  we  shall  hardly  be  able  to  arrive 
at  a  lucid  and  yet  concise  definition,  as  the  ideas 
involved  in  the  term  seem  to  be  inseparably  con- 
nected with  both  theology  and  politics,  and,  while 
some  writers  claim  to  have  effected  their  separa- 
tion, others  contend  that  all  three  are  indissolubly 
blended.  As  there  is  no  determinate  authority  by 
which  the  question  can  be  settled  it  resolves  itself 
into  a  matter  of  individual  opinion. 

5.  In  tracing  the  derivation  of  the  word  we 
find  that  it  originally  meant  character,  or  that 
which  relates  to  character  as  distinguished  from 
intellect.-  This  primitive  meaning  it  did  not  long 
retain,  however,  for  the  works  of  the  early  Greek 
writers,^  to  which  the  term  was  first  applied,  are 
not  concerned  with  character,  considered  simply  as 
character,  but  with  its  good  and  bad  qualities;  and 
the  antithesis  of  "good"  and  "bad,"  in  some  form, 
is  involved  in  all  ethical  affirmation  and  constitutes 

2  Sidgwick's  Hist.  Ethics,  i. 

8  Plato,  Aristotle,  and  the  Greek  philosophers  generally. 


4  ESSAYS    IN    LEGAL    ETHICS. 

the  distinguishing  feature  which  serves  to  separate 
ethics  from  other  departments  of  psychical  inquiry. 

6.  The  fundamental  concepts  of  ethics  seem 
to  have  reference  to  the  position  and  relations  of 
man  as  a  free  and  intelligent  being,  and  the  good 
that  may  be  accomplished  by,  through  and  for  him. 
Upon  this  foundation  have  been  erected  many  theo- 
ries, systems  and  schools  of  thought,  but  from  all 
of  these  systems  we  may  fairly  draw  one  broad 
conclusion,  and  this  we  may  formulate  in  the  follow- 
ing definition  :  Ethics,  is  the  sum  of  the  aggregate 
of  the  rules  of  duty,*  or  right  living.  This  may 
or  may  not  coincide  with  the  definitions  found  in 
some  of  the  technical  treatises,  but  it  does  quite  fully 
express  the  notion  represented  by  our  term  "legal 
ethics,"  and  hence,  it  is  sufficient  for  our  purpose. 

7.  General  theories  of  ethics.  As  pre- 
viously remarked,  the  science  of  ethics,  being  purely 
speculative,  has  produced  many  varieties  and  shades 
of  opinion.  A  favorite  theory  with  many  of  the 
philosophers  is  that  ethics  is  an  exposition  of  the 
moral  law  as  distinguished  from  the  civil  law;  the 
former  being  imposed  by  the  conscience,  the  latter 
by  the  power  of  the  state.  Hence,  they  say,  ethics 
regards  mental  dispositions ;  jurisprudence,  outward 
acts.'^     From  this  differentiation  they  evolve  mental 

*  Duties,  are  actions,  or  courses  of  action,  considered  as 
being  right.    Whewell,  Elements  of  Morality,  b.  i,  c.  4. 

^  The  character  of  actions  considered  with  reference  to  the 
internal  springs  of  action  from  which  they  proceed,  is  their 
moral  character.    Whewell,  El.  Morality,  b.  iii,  c  I. 


PRELIMINARY   OBSERVATIONS.  5 

conditions  which  they  term  vice  and  virtue,  and 
distinguish  between  them  and  their  legal  counter- 
parts.® Thus,  vice  is  that  which  morally  a  man 
may  not  do ;  crime  is  that  which  legally  he  may  not 
do.  It  will  be  perceived  that  in  this  form  of  ethical 
theory  the  jural  notion  is  paramount,  but,  as  the 
framers  of  these  theories  have  not  usually  been 
lawyers,  or,  at  best,  but  what  are  termed  "specula- 
tive jurists,"  a  number  of  misleading  ideas  have 
been  engendered,  or,  to  employ  a  more  euphemistic 
expression,  ideas  that  are  not  in  accord  with  the 
modern  analytical  school  of  jurisprudence. 

8.  It  is  said  that  the  first  inquiry  in  moral 
science  is  after  an  ultimate  rule,  a  supreme  prin- 
ciple of  life,  which  shall  be  of  imperative  and  uni- 
versal authority,  and  around  which  shall  be  grouped 
all  the  motives  and  maxims  of  action.'^  This  seems 
to  be  the  essential  feature  of  every  ethical  system, 
but  the  variations  of  method  by  which  this  end  shall 
be  attained  are  very  numerous. 

9.  In  what  are  known  as  the  objective  theories, 
that  is,   in  the  systems  which   seek  the  ultimate 

^  It  has  been  said,  that  virtues  are  the  habits  of  mind  by 
which  we  are  led  to  perform  duties.  The  transgression  of  a 
duty,  considered  as  a  habit,  is  a  vice.  Virtues  and  vices  may 
also  be  considered  as  the  results  of  the  dispositions  of  men. 
Thus,  considered  as  a  disposition,  vice  is  depravity,  or  wick- 
edness.    Whewell's  El.  Morality,  b.  i,  c.  4. 

'See,  Am.  Cyc.  Art.  Moral  Philosophy;  Sidgwick,  Hist 
Ethics,  8;  Wayland's  Moral  Science,  33;  Whewell's  El. 
Morality,  b.  iii,  c.  i. 


6  ESSAYS   IN   LEGAL   ETHICS. 

moTal  rule  outside  of  the  mind,  the  jural  idea 
is  generally  present  and  the  authority  of  the  state 
as  well  as  of  divine  revelation  is  recognized.  In 
these  systems  the  old  classification  of  the  schoolmen 
and  their  successors  seems  to  be  retained,  and  in  a 
series  of  three  ascending  degrees,  positive  law, 
natural  law,  and  moral  law,  is  usually  embraced  the 
whole  science  of  duty  or  right  conduct.^ 

10.  In  the  subjective  theories,  or  those  sys- 
tems which  find  the  ultimate  basis  of  morality 
within  the  mind,  the  prevailing  view  denies  the 
existence  of  virtue  and  vice  in  the  abstract  and 
asserts  the  existence  of  a  moral  sense  which  ap- 
proves certain  acts  and  intentions  as  right  and  dis- 
approves others  as  wrong;  in  other  words,  an 
appeal  is  made  to  reason,  which  is  taken  as  of  ulti- 
mate and  conclusive  authority  and  the  source  of  all 
moral  truth.®  In  this  theory,  it  will  be  perceived, 
the  jural  element  is  not  apparent,  yet,  as  it  involves 
the  general  doctrine  of  free  will  this  notion  of  free- 
dom, it  is  claimed,  serves  to  connect  ethics  with 
jurisprudence.     Thus,  it  is  said,  the  fundamental 

s  This  represents  the  doctrines  of  S.  Thomas  Aquinas,  and 
his  followers,  and  is  the  crowning  result  of  the  great  con- 
structive efforts  of  medieval  philosophy.  Its  influence  has 
been  great  and  long  enduring,  not  only  in  theology  but  in 
law  as  well,  and  conspicuous  examples  will  be  found  in  the 
writings  both  of  Blackstone  and  Kent. 

"  This  represents  the  school  of  Kant,  and  certain  of  the 
German  moralists.  It  also  furnishes  the  basis  upon  which 
many  of  the  college  text-books  have  been  prepared.  See, 
Champlin's   Principles  of   Ethics. 


PRELIMINARY    OBSERVATIONS.  7 

aim  of  jurisprudence  is  to  realize  external  freedom 
by  removing  the  hindrances  imposed  on  each  one's 
free  action  through  the  interferences  of  other's 
wills;  ethics,  on  the  other  hand,  is  concerned  with 
the  realization  of  internal  freedom  by  the  resolute 
pursuit  of  rational  ends  in  opposition  to  those  of 
natural  inclination.^^ 

11.  It  will,  of  course,  be  understood  that 
the  foregoing  is  only  the  barest  outline  of  the  two 
great  branches  of  ethical  thought  and  that  both 
branches  are  subject  to  much  modification  by  the 
various  "schools"  which  have  been  founded  upon 
them.  With  respect  to  the  subjective  theory  we 
m.ay  pass  it,  for  the  present,  without  further  com- 
ment, but  the  objective  theory  raises  a  few  interest- 
ing points  that  can  best  be  considered  in  this 
connection. 

12.  Law  and  morals  distinguished.  It  is 
not  proposed  to  enter  into  a  discussion  of  the 
principles  of  jurisprudence,  but  the  loose  and  indis- 
criminate manner  in  which  the  term  "law"  is  con- 
stantly employed,  particularly  by  writers  on  moral 
philosophy,  would  seem  to  render  necessary  at  least 
a  passing  allusion  to  that  term  in  connection  with 
morals. 

13.  While  we  are  accustomed  to  minute  classi- 
fications of  scientific  knowledge,  it  must  yet 
be  remembered  that  these  classifications  are  very 
modern.    There  was  no  such  separation  of  sciences 

^°  Sidgwick,  Hist.  Ethics,  274. 


8  ESSAYS    IN    LEGAL   ETHICS. 

known  to  the  ancients,  and  the  world,  with  all  its 
varied  phenomena,  mental  and  physical,  was  con- 
sidered and  studied  as  a  whole.  In  time,  lines  of 
demarcation  were  drawn  and  what  are  known  as 
the  physical  and  mathematical  sciences  came  to  be 
separated  and  formed  into  distinct  classes,  but,  for 
many  years  after  this  process  of  differentiation  had 
commenced,  such  topics  as  government,  politics, 
legislation,  ethics,  and  other  kindred  abstractions, 
continued  to  be  classed  together  under  the  general 
name  of  philosophy.  The  word  "law"  had  no  defi- 
nite and  specific  meaning.  It  was  used  to  denote 
the  observed  relations  of  phenomena,  of  every  kind 
and  nature,  as  well  as  to  indicate  rules  for  the  regu- 
lation of  human  actions,  irrespective  of  origin  or 
method  of  enforcement.  This  indiscriminate  and 
improper  employment  of  the  term  has  continued  to 
our  own  day,^^  and  notwithstanding  that  it  is  now 
employed    in    the    physical    sciences    merely   as    a 

^^  One  of  the  resultants  of  this  use  is  the  confusion  grow- 
ing out  of  the  application  of  the  term  "natural  law."  It  is 
extensively  used  by  both  physicists  and  moralists,  but  with 
quite  different  meanings.  The  former  employ  it  to  indicate 
the  order  of  nature ;  the  latter  to  indicate  moral  precepts. 
With  the  former  we  are  not  now  concerned,  but  the  moralist's 
conception  is  very  lucidly  expressed  by  Prof.  R.  J.  Holaind, 
S.  J.,  in  the  following  definition :  "Natural  law  is  a  body  of 
moral  principles  which  reason  itself  teaches,  and  which  are 
binding  on  all  men."  See  Natural  Law  and  Legal  Practice, 
48.  Some  writers,  even  legists,  have  further  confounded 
the  term  by  applying  it  to  that  class  of  animal  propensities 
usually  known  as  instinct. 


PRELIMINARY    OBSERVATIONS.  9 

metaphor,  or  figure  of  speech,  it  is  still  used  by- 
writers  on  moral  philosophy  in  its  early  and  incor- 
rect sense ;  that  is,  to  denote  either  a  mode  of  exist- 
ence or  an  order  of  sequence.^  ^ 

14.  We  have  seen  that  in  the  objective  theory 
of  ethics  the  jural  idea  is  the  controlling 
motive.  The  theory  rests  on  the  notion  of  law,  and 
conduct  is  regulated  and  governed  by  rules.  The 
framers  of  this  theory,  however,  did  not  distinguish 
between  law  and  morals,  but  only  between  a  higher 
and  a  lower  law  and  the  higher  law  was  always 
made  to  supersede  the  lower  whenever  they  came 
in  apparent  conflict.^ ^  This  view  prevailed  for 
many  years  and  finds  expression,  even  in  legal 
treatises,  until  as  late  as  the  middle  of  the  last  cen- 
tury. But,  in  modern  jurisprudence  the  word 
"law"  has  now  come  to  have  a  fixed  and  definite 
meaning.  The  old  classification  of  the  schoolmen 
has  been  rejected,  and,  instead  of  an  ascending  scale 
of  positive,  natural  and  moral  law,  we  now  use  the 
term  "law,"  with  no  qualifying  words  whatever,  as 
indicative  of  a  rule  of  human  action,  referring  only 
to  external  acts,  and  enforcible  by  a  sovereign 
political  authority.^*  All  other  rules  for  the  guid- 
ance of  human  action  are  called  laws  merely  by 
analogy;  and  any  propositions  that  are  not  rules 

^2  See,  Wayland's   Moral  Science,  25. 

13  Hooker,  Eccl.  Pol.  b.  iii,c.  9;  Locke,  Civ.  Govt.  11.    Black- 
stone  advances  the  same  view ;  see  Black.  Com.  Intr.  p.  43. 
!•*  Holland,  Jur.  2>7''   Markby,  El.  Law,  3;  Pollock,  Jur.  21. 


10  ESSAYS    IN    LEGAL    ETHICS. 

for    human   action   are   called   laws   by   metaphor 
only.^*^ 

15.  There  are,  however,  a  large  number  of  what 
we  may  call,  principles  of  conduct,  or  precepts 
of  morality,  which  obtain  a  general  recognition  in 
every  civilized  community  but  which  are  enforced, 
if  at  all,  only  by  public  opinion  or  some  other  equally 
indeterminate  authority.  These  principles  have 
been  developed  through  a  variety  of  means.  Re- 
ligion has  been  a  potent  factor,  probably  the  most 
powerful  of  all,^^  but  many  other  causes  have  con- 
tributed and  the  principles  themselves  are  con- 
stantly being  subjected  to  new  adaptations  to  meet 
the  changing  conditions  of  the  people  and  the 
exigencies  of  the  times. 

16.  In  many  ways  these  precepts  resemble 
rules  of  law  and  not  infrequently  the  two  seem  to 
coincide.  Thus,  the  moral  precept,  "Thou  shalt 
not  steal,"  is,  in  a  general  way,  the  same  as  the 
legal  rule,  but  the  further  moral  precept,  "Thou 
shalt  not  covet,"  finds  no  coincident  rule  in  the  law. 
Now,  as  a  matter  of  fact,  the  inward  covetous  desire 
invariably  precedes  the  outward  act  of  theft,  and, 
from  a  moral  point  of  view,  is  far  the  more  repre- 
hensible of  the  two,  and  yet,  it  is  not  the  subject 

15  Holland,  Jur.  37. 

1^  Many  writers  contend  there  can  be  no  morality  with- 
out religion.  For  an  interesting  discussion,  see,  Mallock's, 
"Is  Life  Worth  Living ;"  also,  a  thoughtful  and  scholarly 
monograph  by  Wm.  Poland,  S.  J.,  on  "True  Pedagogics  and 
False  Ethics," 


PRELIMINARY    OBSERVATIONS.  II 

of  legal  rules.  The  reason  for  this  is,  that  law  does 
not  aim  at  perfecting  the  character  of  men,  but  has 
for  its  object  the  regulation  of  the  relations  which 
men,  as  citizens,  sustain  to  each  other  and  to  the 
state.  As  these  relations  arise  only  through  words 
and  acts,  the  province  of  the  law  is  confined  to 
external  manifestations  and  does  not  extend  to  that 
which  lies  in  the  thought  and  conscience  of  the 
individual.^ ''^  All  such  latter  matters  fall  within  the 
domain  of  ethics,  and,  notwithstanding  that  both 
law  and  ethics  do,  for  some  purposes,  occupy  a  com- 
mon ground,  and  that  the  rules  of  the  latter,  in 
many  instances,  relate  not  only  to  internal  acts  of 
the  will  but  to  external  manifestations  as  well,  yet, 
because  of  their  imperfect  sanction,  they  are  distin- 
guished from  law  and  classified  as  morals. 

17.  Morals  and  ethics  distinguished. 
While  for  most  purposes,  and  by  most  people, 
morals  and  ethics  are  regarded  as  convertible 
terms,^^  there  would  yet  seem  to  be  a  perceptible 
difference  between  them;  and,  as  the  first  and  con- 
stant care  of  the  legal  student  is  to  distinguish 
between  things  which  appear  similar  and  yet  are 
different,  so  it  may  be  well  for  us  to  give  at  least 
passing  attention  to  these  two  words. 

18.  Morality,  meaning  by  that  term  the  rules, 

1^  Pollock.  Jur.  44. 

18  Thus,  Paley  says,  "Moral  philosophy,  morality,  ethics, 
casuistry,  natural  law,  all  mean  the  same  thing;  namely,  that 
science  which  teaches  men  their  duty  and  the  reasons  of  it." 
Paley,  Moral  Philosophy,  b.  i,  c.  i. 


12  ESSAYS    IN    LEGAL   ETHICS. 

precepts,  communal  observances  and  usages  which 
regulate  and  govern  human  conduct  vv^ithout 
any  positive  sanction,  and  which  furnish,  in  a  gen- 
eral way,  a  standard  of  righteous  living,  finds  an 
expression  among  all  civilized  peoples.  But,  the 
prevailing  morality  of  a  community  is  a  fact,  not 
a  theory;  neither  is  it  in  any  way  dependent  on 
theories.  When  or  how  it  became  established  may 
not  be  known,  nor  is  it  material  that  it  should  be. 
It  is  sufficient  that  it  exists.  In  an  age  of  simple 
faith  and  passive  obedience  no  explanation  is  asked 
or  given  as  to  what  duty  is,  nor  why  a  duty  in  one 
case  should  be  different  from  that  in  another. 
General  notions  are  acquired  and  transmitted,  and 
are  observed  and  followed  without  question.  But 
in  time,  as  the  study  of  mental  phenomena  develops, 
men  seek  for  a  rational  explanation  of  these  exist- 
ing facts.  Theories  are  framed  and  views  are 
advanced,  and  so  the  science  of  ethics  comes  into 
being. 

19.  This  may  not  be  in  strict  accord  with  the 
statements  of  some  of  the  expositors  of  ethical 
science,  but  it  certainly  is  sustained  by  the  history 
of  the  subject,^ ^  and  while  ethical  theory  may,  and 
does,  have  a  marked  influence  on  moral  practice, 
the  distinction  still  remains.  As  has  been  aptly  said 
by  one  learned  writer,^^  "when  man  reaches  the 
stage  of  philosophical  questioning,  and  communes 

"  See,   Sidgwick,  Hist.  Ethics,  passim. 
20  Pollock's  Essays,  293. 


PRELIMINARY   OBSERVATIONS.  13 

with  himself  concerning  morals  as  of  other  things 
in  general,  he  comes  to  the  task  with  morality 
ready-made  and  in  full  operation.  His  real  object 
is  not  to  find  speculative  principles  and  deduce 
morality  from  them  as  if  morality  had  to  be  in- 
vented for  the  first  time,  but  to  assign  principles 
on  which  he  may  account  for  the  morality  already 
familiar  to  him."  It  will  be  seen,  therefore,  that 
while  we  are  accustomed  to  connote  the  same  ideas 
in  morals  and  ethics,  and  while  to  a  considerable 
extent  the  two  words  involve  the  same  general 
notion,  yet,  they  are  distinct  in  this;  that  morality 
represents  existing  facts,  while  ethics  is  the  scien- 
tific hypothesis  for  the  explanation  of  existing 
facts.2i 

20.  By  making  this  distinction  we  are  relieved 
of  much  embarrassment.  We  are  not  required 
to  discuss  the  merits  of  conflicting  ethical 
theories,  nor  to  choose  between  them,  for  the  law 
does  not  concern  itself  with  theories  of  morality 
but  with  morality  itself,  as  attested  by  the  prevail- 
ing public  sentiment. 

21.  The  standard  of  morals.  There  are  in 
constant  use,  as  parts  of  our  common  speech,  the 
words  "right"  and  "wrong,"  to  which  we  all  attach 
a  more  or  less  definite  meaning.  When  we  shall 
come  to  analyze  this  meaning  it  will  almost  in- 
variably be  found  that  our  conception  is  ethical,  not 

21  The   student   will   find   this   phase   of  our   subject  very 
ably  and  learnedly   discussed  in  Pollock's  Essays,  passim. 


14  ESSAYS    IN    LEGAL   ETHICS. 

jural.  In  other  words,  that  our  sense  of  right  and 
wrong  is  measured  by  some  internal  standard  of 
our  own  and  not  by  one  which  the  law  has  estab- 
lished. As  a  consequence,  no  one  has  yet  come 
forward  with  a  definition  of  these  terms,  considered 
as  ethical  concepts,  that  is,  in  all  respects,  satisfac- 
tory. It  is  said  that  wrong  implies  a  departure 
from  some  assumed  standard,  and  right  a  conform- 
ity to  it,  but,  while  this  is  undoubtedly  true,  it  sheds 
no  light  upon  the  terms  themselves,  and  we  are  as 
much  in  the  dark  as  ever  with  respect  to  their  essen- 
tial character.  Like  the  antithesis  of  "good"  and 
"bad,"  they  represent  diametrically  opposed  ideas 
in  morals,  but  this  is  about  all  that  can,  with  any 
degree  of  certainty,  be  said  concerning  them. 

22.  The  internal  standard  by  which  we  deter- 
mine right  and  wrong  we  call  the  conscience, 
and,  generally,  the  prevailing  views  of  a  community, 
with  respect  to  morals,  are  created  by  the  concur- 
ring consciences  of  all  or  a  majority  of  the  people 
that  constitute  such  community.^^     Now,  whatever 

22  As  science  means  knowledge,  so  conscience  etymological- 
ly  means  self-knowledge;  and  such  is  its  meaning  in  Latin 
and  French,  and  of  the  corresponding  word  in  Greek.  But 
the  English  word  seems  to  have  a  more  extended  significa- 
tion, implying  a  moral  standard  of  action  in  the  mind,  as  well 
as  self-knowledge  of  our  own  actions.  This  distinction  was 
noted  by  the  early  Christian  moralists,  and  has  since  been 
followed  by  the  commentators,  who  separate  the  offices  of 
conscience  and  assign  to  each  respectively  the  province  of 
witnesses,  accuser,  and  judge.  Under  this  arrangement  he 
who  is  condemned  by  his  own   conscience  is  considered  as 


PRELIMINARY    OBSERVATIONS.  1 5 

else  may  be  said  concerning  it,  this  something 
which  we  call  conscience  is  largely  a  matter  of 
education,  association  and  environment.^^  This  is 
evident  from  the  fact  that  morality,  or  at  least  the 
popular  conception  of  moral  duties,  is  different 
among  different  peoples  at  the  same  time  and  among 
the  same  people  at  different  times.  And  even  where 
we  find  a  substantial  conformity  to  what  we  may 
term  the  customary  morality  of  a  community  there 
will  yet  be  classes,  who,  by  reason  of  their  associa- 
tion and  education,  seem  to  have  a  morality  to  some 
extent  peculiar  to  themselves.  This  is  particularly 
true  of  the  professions,  where  the  abstract  principle 
of  right  and  wrong  is  applied  on  specialized  lines 
and  it  is  from  this  specialization  that  we  obtain 
what  is  popularly  called  "legal  ethics." 

2^.  Where  the  moral  convictions  of  a  commu- 
nity generally  coincide  it  produces  a  force  called 
public  opinion,  which,  if  sufficiently  strong  and  long 
continued,  eventually  cr3^stallizes  intO'  a  law.  When 
this  consensus  of  moral  opinion  has  developed  into 
a  law  of  the  state  the  words  "right"  and  "wrong," 
as    they    may    represent   ethical    concepts,    are   no 

having  offended  against  the  supreme  rule,  and  from  this  is 
deduced  the  conclusion,  that,  he  who  acts  contrary  to  the 
dictates  of  his  conscience  is  always  wrong.  The  fallacy  of 
the  conclusion  is  apparent  without  demonstration,  yet  it  con- 
tinues to  find  large  numbers  of  adherents. 

23  See,  Paley,  Moral  Philosophy,  b.  i,  c.  5 ;  Locke,  Human 
Understanding,  b.  ii,  §  1-12;  Whewell,  Elements  Morality, 
b.  iii,  c.  28. 


l6  ESSAYS    IN    LEGAL   ETHICS. 

longer  applicable.  The  law  is  always  right,  even 
though  it  be  iniquitous  from  the  moral  point  of 
view  of  the  individual.  Any  other  theory  inevitably 
leads  to  civil  disruption  and  anarchy. 

24.  Obedience  to  law  a  moral  duty.  The 
question  of  moral  right  and  wrong  has  always  been 
a  debatable  one  and  will  doubtless  ever  so  continue. 
Not  infrequently  we  find  men  who  assert  that 
specific  provisions  of  the  law  are  morally  wrong, 
and  hence  not  obligatory  on  conscience,  while  some 
even  go  so  far  as  to  say  that  when  conscience  con- 
demns a  law  it  should  be  resisted.^*  This  comes, 
it  would  seem,  from  an  undue  exaltation  of  self; 
an  apparent  belief  in  an  inward  divinity  whose  dic- 
tates are  unerring  and  infallible.  Now,  no  person 
more  than  the  writer  reverences  this  internal  mentor 
we  call  conscience,  but  the  experience  of  the  ages 
teaches  us  that  it  is  a  most  fallible  guide,  and  his- 
tory teems  with  instances  of  oppression,  injustice, 
and  crime,  resulting  from  a  narrow  and  darkened 
conscience. 

25.  The  moral  faculty  being  thus  fallible,  it 
logically   follows   that   in   every   community   there 

2*  This  pernicious  doctrine  may  even  be  found  in  books 
prepared  for  the  education  of  American  youth.  Thus,  one 
writer  says :  that,  where  the  laws  impose  duties  which  the 
individual  conscience  pronounces  wrong,  such  person  may 
"openly  refuse  obedience,  be  the  consequences  what  they  may. 
Conscience  is  higher  than  law;  and,  in  a  clear  case  of  con- 
flict between  them,  the  law  must  yield — at  least,  conscience 
cannot."     Champlin,  Principles  of   Ethics,  49. 


PRELIMINARY    OBSERVATIONS.  17 

must  be,  to  some  extent,  a  conflict  of  consciences. 
Men  divide  on  all  the  questions  of  the  hour.  They 
have  always  done  so;  they  will  always  continue  to 
do  so.  Both  sides  are  equally  honest  and  sincere, 
and  both  are  equally  insistent.  In  a  rude  and  bar- 
barous age  the  appeal,  in  such  a  case,  was  to  force, 
and  might  became  right.  But,  in  time,  another 
arbiter  arose.  Organized  society — the  state — came 
into  being,  and  a  new  and  controlling  element  was 
introduced.  This  element  we  call  lazv,  but  it  is 
practically  nothing  more  than  the  embodied  con- 
science of  the  political  community.  To  this  para- 
mount assertion  of  control  and  direction  each 
individual  of  the  community  is  bound  to  submit. 
Obedience  to  law  is  a  moral  duty. 

26.  Authority  of  ethical  opinion.  While 
the  proposition  of  the  last  paragraph  must  be 
accepted,  by  every  lawyer  at  least,  as  final  and  con- 
clusive, there  may,  perhaps,  be  room  for  question 
where  a  rule  is  proposed  which  lacks  the  legal  sanc- 
tion. It  is  often  contended,  that  every  man  in  the 
possession  of  unimpaired  faculties  has  a  right  to  be 
the  sole  judge  of  his  own  course  of  conduct,  and 
that  to  compel  him  to  shape  such  conduct  in  con- 
formity to  the  mere  opinions  of  others  is  virtually 
to  enslave  him.  The  argument  is  not  without  force 
and  rests  upon  a  foundation  of  truth.  But  in  every 
organized  society  there  is,  and  always  has  been,  a 
series  of  rules,  maxims  and  precepts,  which  have 
never  been  resolved  into  law^s,  but  which,  notwith- 


l8  ESSAYS    IN    LEGAL   ETHICS. 

standing,  continue  to  obtain  a  general  recognition 
and  observance.  They  are  the  received  opinions  of 
the  community  respecting  the  matters  to  which  they 
relate  and  represent,  in  many  instances,  the  results 
of  long  experience, 

2^.  The  acceptance  of  these  maxims  is  based 
mainly  upon  the  facts,  that  the  individual  cannot 
have  an  experience  of  all  things;  that  his  oppor- 
tunities for  observation  are  necessarily  limited ;  and 
that  a  consensus  of  intelligent  opinion  upon  almost 
any  subject,  is  usually  superior  to  that  of  the  indi- 
vidual. If  every  man  were  permitted  to  exercise 
his  own  uncontrolled  judgment  with  respect  to  his 
own  conduct,  even  though  he  conformed  to  the  let- 
ter of  the  law,  most  deplorable  consequences  must 
often  result,  while  such  a  course  would  directly 
tend  to  create  a  spirit  of  licentiousness  that  in  the 
end  would  subvert  the  good  order  of  society  and 
overturn  the  law  itself. 

28.  Nor  does  this  proposition  involve  any  legal 
inconsistency.  There  are  many  forms  of  authority 
outside  of  the  law  and  we  are  constantly  recogniz- 
ing them  and  submitting  to  them.  We  defer  to  the 
opinions  of  our  legal  advisers,  physicians,  trades- 
men and  artisans,  in  all  matters  relating  to  their 
respective  avocations.  We  do  this  for  the  reason, 
that  their  experience  and  observation  in  the  special 
matter  has  been  greater  than  that  of  our  own.  In 
like  manner  we  acknowledge  the  aggregate  opin- 
ions   of    community    with    respect    to    customary 


PRELIMINARY    OBSERVATIONS.  19 

morals  and  rules  of  conduct,  and  such  opinions  are, 
in  a  proper  sense,  authority. 

29.  What  is  true  of  society  as  a  whole  is  also 
true  of  many  of  its  component  parts,  particularly  its 
subsidiary  organizations.  A  craft,  or  profession, 
from  its  experience  and  observation,  establishes 
certain  cancfns  of  ethical  import  and  makes  rules 
for  the  guidance  and  government  of  its  members. 
The  rules  may  be  express  or  implied,  and  it  is 
immaterial  whether  they  be  written  or  unwritten.  It 
is  sufficient  that  they  have  received  a  general  assent 
by  substantial  observance  only.  They  then  become 
binding  on  all  of  the  members,  and  derelictions 
therefrom  constitute  breaches  of  the  ethical  code. 

30.  Legal  ethics  defined  and  distin- 
guished. Thus  far  we  have  been  considering  only 
the  general  subject  of  ethics,  while  our  special  study 
is  denominated  "legal  ethics."  But  this  is,  to  a  large 
extent,  a  misnomer,  for  our  study  has  nothing  to 
do  with  law  as  law,  but  relates  wholly  to  profession- 
al conduct  on  the  part  of  those  who  assume  to  prac- 
tice law.  For  this  reason,  therefore,  we  shall  more 
nearly  express  the  idea  involved  if  we  call  it  "pro- 
fessional ethics."  Yet  even  this  term  is  unsatis- 
factory, for  it  seems  to  imply  that  there  may  be 
different  standards  of  righteous  living  and  conduct. 
Indeed,  it  suggests  the  very  pertinent  inquiry :  Do 
men  by  entering  a  particular  profession  thereby  as- 
sume any  moral  duties  on  the  one  hand  or  acquire 
any  exemption  on  the  other,  distinguishable  from 


20  ESSAYS    IN   LEGAL   ETHICS. 

those  which  apply  to  the  rest  of  mankind?  The  an- 
swer is  an  imquahfied  No!  Truth,  sincerity,  hon- 
esty, fidehty  and  the  rest  of  the  virtues,  are  im- 
posed ahke  upon  the  humble  artisan  and  eminent 
advocate,  while  the  rules  which  prompt  to  action  are 
the  same  in  either  case, 

31.  But  convenience  has  invented  phrases 
which  custom  has  sanctioned,  until  they  have  be- 
come parts  of  our  common  speech,  and  thus  have 
been  coined  such  barbarous  terms  as  "legal  ethics," 
"medical  ethics,"  etc.,  meaning  thereby  the  moral 
principles  and  codes  of  specialized  rules  that  have 
been  built  upon  them,  which,  in  theory  at  least,  are 
to  govern  the  conduct  of  the  practitioner  as  a  prac- 
titioner. It  will  be  found  upon  investigation,  how- 
ever, that  while  many  of  these  rules  are  but  special 
applications  of  broad  principles  others  are  strictly 
conventional  usages  of  the  particular  profession. 
This  is  strikingly  illustrated  by  those  rules  which 
relate  to  the  professional  intercourse  of  practition- 
ers, and,  while  such  rules  have  a  decidedly  ethical 
basis,  they  are  yet  of  that  character  to  which  we  or- 
dinarily apply  the  term  "etiquette." 

32.  Legal  ethics  may  also  be  distinguished  from 
the  general  subject  in  that  while  a  violation  of  the 
moral  code,  as  established  by  the  conventions  of  so- 
ciety, will  usually  result  in  nothing  worse  than  so- 
cial ostracism,  a  disregard  of  the  ethics  of  the  bar 
may  result  in  professional  death.  In  society  men 
are  kept  within  bounds  by  no  stronger  a  force  than 


PRELIMINARY    OBSERVATIONS.  21 

public  opinion,  but  in  the  legal  profession  a  sum- 
mary jurisdiction  is  lodged  in  the  courts  to  disci- 
pline offenders  against  morals  and  good  conscience. 
To  this  extent  legal  ethics  partakes  of  the  nature 
of  law. 

33.  But  this  disciplinary  power  extends  only 
to  the  lawyer  as  a  lawyer.  It  is  exercised  only 
with  respect  to  professional  duty.  As  a  man  and  a 
citizen  the  lawyer  is  not  distinguishable  from  other 
men.  His  obligations  to  society  are  the  same  as 
those  of  every  other  citizen,  and  for  any  breaches 
thereof,  amounting  to  no  more  than  a  disregard  of 
conventional  usage,  he  can  be  arraigned  only  at  the 
bar  of  public  opinion. 

34.  It  may  be  said,  and  with  much  truth,  that 
a  man  called  to  the  honorable  position  of  an  advo- 
cate should  exhibit,  both  in  and  out  of  his  profes- 
sion, the  sterling  qualities  that  constitute  the  high- 
est excellence  of  righteous  living.  But  this  is  a 
duty  incumbent  on  all  men,  whatever  may  be  their 
avocation  or  their  position  in  society.  The  law 
does  not  concern  itself  with  moral  duties,  however 
much  they  may  serve  to  influence  legislation,  nor 
does  legal  ethics  properly  extend  to  individual  char- 
acter. It  is  upon  this  theory  that  the  present  work 
has  been  constructed,  and  in  the  chapters  that  fol- 
low a  consistent  effort  has  been  made  to  confine  the 
subject  within  its  legitimate  channel.  The  writer 
does  not  assume  to  be  a  mentor  nor  to  teach  morals. 

35.  Scope  of  professional   duty.     The  ma- 


22  ESSAYS    IN    LEGAL   ETHICS. 

jority  of  the  writers  who  have  heretofore  discussed 
the  subject  of  legal  ethics  have  generally  divided 
their  work  into  a  number  of  succinct  heads,  under 
each  of  which  they  have  treated  a  specific  phase  of 
professional  duty.  The  lawyer  is  regarded  as  being 
charged  with  a  number  of  distinct  professional  obli- 
gations to  society  and  certain  of  its  members,  and 
the  enumeration  is  usually  as  follows : 

1.  To  the  public — the  state. 

2.  To  the  suitors — the  clients. 

3.  To  the  court — judges  and  juries. 

4.  To  the  bar — his  professional  brethren. 

This  method  of  treatment  is  not  without  its  ad- 
vantages and  serves  to  sharply  define  the  profes- 
sional relations  which  a  lawyer  sustains.  Indeed, 
every  writer,  whatever  may  be  the  arrangement  of 
his  work,  must  necessarily  cover  these  four  formal 
divisions.  In  the  present  work,  however,  the  writer 
has,  to  some  extent,  disregarded  the  usual  conven- 
tional disposition  of  topics  and,  while  covering  each 
of  them,  has  endeavored  to  secure  a  greater  free- 
dom and  range  of  action  by  adopting  a  less  arbitra- 
ry division.  While  the  discussions  which  follow  all 
relate,  directly  or  indirectly,  to  the  topics  above 
enumerated,  they  have  been  considered  separately 
or  in  conjunction,  as  seemed  most  conducive  to 
clearness  of  statement  and  a  better  understanding 
of  the  general  subject.  No  attempt  has  been  made 
to  present  them  in  the  order  above  shown  nor  to 
preserve  the  respective  heads. 


CHAPTER  11. 
THE    OFFICE    OF    THE    ADVOCATE. 

Generally  considered — The  essential  principle  of  advocacy 
and  the  conditions  that  support  it — Origin  of  advocacy 
and  character  of  early  practitioners — Early  concepts 
of  professional  duty  and  their  effect  on  later  develop- 
ments— Division  of  legal  labor  and  its  effect  on  profes- 
sional ethics — General  duties  of  the  advocate  and  im- 
memorial obligations — Connection  and  professional  re- 
lation of  the  bench  and  bar. 

36.  Generally  considered.  In  an  earlier 
age,  when  society  existed  only  in  its  primitive  forms, 
the  transactions  of  the  people  were  simple  and 
easily  adjusted.  If,  perchance,  differences  arose, 
which  resulted  in  judicial  inquiry,  the  process  was 
summary  and  the  procedure  unartificial,  as  befitted 
the  rude  simplicity  of  the  times.  The  inquiry  might 
take  any  form  that  seemed  best  suited  to  the  exigen- 
cies of  the  particular  case  and  any  and  all  kinds  of 
evidence  might  be  received.  But  in  time,  as  civili- 
zation advanced,  as  transactions  became  more  com- 
plex, and  as  clearer  ideas  of  rights  and  duties  came 
to  prevail,  it  was  found  necessary  to  establish  rules 
for  the  presentation  of  causes  and  the  manner  in 
which  they  should  be  conducted.  Experience  dem- 
onstrated that  the  want  of  settled  methods  of  pro- 
cedure produced  a  confusion  and  uncertainty  which 

2Z 


24  ESSAYS    IN    LEGAL   ETHICS. 

not  infrequently  resulted  in  great  injustice,  and  with 
the  deepening  of  this  conviction  came  the  first  reg- 
ular forms  of  legal  actions.  Later,  as  the  rules  be- 
came more  numerous  and  more  nicely  distinguished, 
they  became  also  less  easily  understood  and  applied 
by  the  great  mass  of  the  people,  until  finally  no  one 
who  had  not  given  the  subject  particular  attention 
could  safely  assume  to  conduct  a  litigation.  From 
these  conditions  was  evolved  a  class  of  men  who,  by 
their  learning  and  skill,  have  rendered  themselves 
competent  to  discharge  the  duties  incident  to  the 
conduct  of  cases  in  the  courts,  and  this  class  we  now 
call  the  Legal  Profession. 

37.  With  the  accumulation  of  years  has  come 
also  an  increased  degree  of  importance  for  the  mem- 
bers of  the  legal  profession.  Originally  employed 
only  as  a  convenience,  their  services  have  now  be- 
come indispensable.  No  one  thinks  of  applying  to 
the  courts  save  through  the  medium  of  the  law- 
yers. 'They  have  become,"  says  one  writer,  "the 
organs  whereby  the  complicated  wants  of  mankind 
reach  the  ear  of  Themis,"^^  and,  as  the  relations  of 
society  continue  to  grow  more  varied  and  complex, 
so  will  the  lawyer's  profession  become  correspond- 
ingly more  essential  in  the  adjustment  of  any  dif- 
ferences that  may  arise.  For  many  years  it  has 
been  a  recognized  division  of  civil  society,  exerting 
a  powerful  and,  in  some  respects,  dominating  in- 
fluence.    Its  character  and  honor  have  therefore 

25  Forsyth,  Hortensius  the  Advocate,  388. 


THE    OFFICE    OF    THE    ADVOCATE.  25 

become  matters  of  public  concern,  and  because  of 
the  magnitude  of  the  interests  placed  in  the  hands  of 
its  members,  the  responsibilities  which  they  assume, 
and  the  confidences  with  which  they  are  intrusted, 
there  is  demanded  of  them  in  the  exercise  of  their 
duties  an  exemplification  of  the  highest  qualities  of 
moral  excellence.  Indeed,  as  has  been  declared  in 
one  case,  the  purity  and  efficiency  of  judicial  ad- 
ministration, which  under  our  system  is  largely  gov- 
ernment itself,  depend  as  much  upon  the  character, 
conduct  and  demeanor  of  attorneys  as  upon  the 
fidelity  and  learning  of  courts,  or  the  honesty  and 
intelligence  of  juries.^^ 

38.  The  practice  of  advocacy.  With  the 
growth  and  development  of  the  practice  of  advoca- 
cy there  has  also  grown  and  developed  a  class  of 
detractors  who  not  only  attack  the  lawyers  but  as- 
sail the  principle  of  advocacy  itself,  which  they  are 
wont  to  characterize  as  repugnant  to  good  morals 
and  sound  ethical  precept.  It  would  seem  that  this 
class  has  always  existed,  and  presumably  will  con- 
tinue to  exist,  so  long  as  advocacy  shall  continue  to 
be  practiced.  While  we  can  afford  to  smile  at  the 
malignant  spirit  which  prompts  these  invectives,  as 
well  as  pity  the  narrow-mindedness  that  can  foster 
such  a  spirit,  we  cannot  afford  to  pass  the  matter 
without  a  fair  examination  of  the  propositions  in- 
volved. 

39.  The  essential  principle  of  advocacy  consists 
26  Proceedings  Ala.  Bar  Assn.;  in  118  Ala.  xxiii. 


26  ESSAYS    IN    LEGAL   ETHICS. 

in  the  substitution  of  persons  professing  special  skill 
and  learning  in  litigated  matters  for  the  actual  lit- 
igants, to  do,  on  their  behalf  and  in  their  stead,  all 
which  they,  if  possessing  sufficient  knowledge  and 
ability,  might  do  for  themselves  with  fairness  to 
their  opponents.  This  very  tersely,  but  it  is  believed 
accurately,  describes  the  full  scope  of  the  advocate's 
calling.  To  the  proper  operation  of  this  principle 
it  is  a  necessary  condition  that  the  advocate  shall 
receive  such  reward  for  his  exertions  as  may  com- 
pensate him  as  well  for  the  preparatory  study  re- 
quired as  for  the  actual  labor  involved.  It  is  a 
further  condition  that  he  should  be  willing,  as  a 
rule,  to  render  his  services  without  previously  decid- 
ing upon  the  merits  of  the  cause  for  which  he  is 
retained.^"^  These  conditions  must  exist  to  sustain 
the  principle,  yet  it  is  these  that  furnish  to  the  as- 
sailants of  the  profession  the  arguments  which  form 
the  basis  of  their  attacks. 

40.  In  the  discussions  of  the  different  phases  of 
professional  character  and  duty  that  follow  we  shall 
have  occasion  to  examine  these  conditions  in  con- 
nection with  the  principle  which  they  support.  It 
is  enough,  at  this  time,  to  show  how  utterly  im- 
practicable is  the  idea,  that,  in  a  society  like  ours, 
every  man  involved  in  litigation  should  conduct  his 
own  cause  or  present  it  only  through  the  medium  of 
unpaid  and  unskilled  friendship.  For  the  due  ad- 
ministration of  justice  we  must  have  men  compe- 
ar U.  S.  Law  Mag.  vol.  i,  p.  3- 


THE    OFFICE    OF    THE    ADVOCATE.  27 

tent  to  advise  both  the  suitor  and  the  court.  Such 
assistance,  as  a  general  proposition,  cannot  be  pro- 
cured without  a  proper  provision  for  compensation. 
And  even  though  we  admit  that  the  advocate  is 
ready  to  undertake  either  side  of  a  cause  for  hire, 
it  does  not  thereby  follow  that  he  is  venal  nor  that 
his  attitude  contravenes  the  principles  of  a  sound 
morality. 

41,  In  the  larger  portion  of  the  vituperative  at- 
tacks to  which  the  bar  is  subjected  the  writers 
seem  to  assume  that  all  litigated  causes  involve  a 
direct  opposition  of  truth  and  falsehood,  and  that 
counsel  engage  to  support  the  bad  side  with  full 
knowledge  of  its  iniquity  and  do  violence  to  their 
own  convictions  solely  for  the  sake  of  pecuniary 
gain.  It  is  this  wholly  fallacious  assumption  that 
has  furnished  a  favorite  theme  for  declamation, 
satire  and  reproach  in  every  age,  and  the  old  thread- 
bare argument  continues  to  find  expression  in  the 
current  works  of  the  pseudo-moralists.  Now,  as  a 
matter  of  fact,  in  the  great  majority  of  litigated 
cases,  even  after  a  careful  hearing  of  both  sides,  it 
is  extremely  difficult  to  say  on  which  side  the  legal 
right  lies.  Yet  these  self-appointed  censors  continue 
to  upbraid  the  lawyers  because  they  refuse  to 
usurp  the  functions  of  the  judge  and  decide  in  ad- 
vance, upon  ex  parte  testimony,  who  has  the  right 
of  the  cause.  This  is  not  the  office  of  the  advocate. 
His  function  is  not  to  make  decisions  but  to  provide 
materials  from  which  others  may  make  decisions. 


28  ESSAYS    IN   LEGAL  ETHICS. 

He  does  not  even  furnish  all  of  the  materials  out  of 
which  such  decisions  are  to  be  framed.  He  stands 
in  the  shoes  of  his  client  and  presents  only  his 
client's  side  of  the  case.  Neither  in  law  nor  morals 
is  the  client  required  to  do  more,  and  the  advocate 
is  under  no  greater  an  obligation  than  the  person 
he  represents. 

42.  Origin  of  advocacy.  The  attorney  and 
counsellor  of  the  American  law  courts  is  a  lineal  de- 
scendant of  the  ancient  English  barrister,  and,  by 
an  unbroken  chain  of  pedigree,  may  trace  his 
genealogy  back  to  the  first  rudimentary  forms  of 
our  present  legal  procedure.  It  is  impossible,  how^- 
ever,  to  say  at  what  time  or  in  what  manner  the 
practice  of  advocacy  was  introduced  into  England, 
and  while  some  imaginative  legal  historians  have 
assigned  a  date  as  early  as  Alfred  the  consensus  of 
critical  opinion  places  it  at  a  much  later  period. 

43.  It  would  seem  that  under  the  Saxon  kings, 
and  certainly  for  some  time  under  Norman  rule, 
every  litigant  spoke  for  himself,  or,  in  some  cases, 
if  laboring  under  a  disability,  by  his  representative. 
But  in  the  latter  case  there  was  no  limitation  upon 
the  litigant  as  to  whom  he  should  select  as  his  rep- 
resentative, nor  was  exclusive  audience  in  the 
courts  reserved  for  any  class  of  the  king's  subjects. 
Thus  matters  continued  until  about  the  time  of 
Henry  II.,  when  legal  procedure  commenced  to  as- 
sume its  present  form,  and  the  latter  half  of  the 
twelfth  century  was  probably  the  time  when  ad- 


THE    OFFICE   OF    THE    ADVOCATE.  29 

vocacy  may  be  said  to  have  made  its  appearance. 
It  was  not  until  the  century  following,  however,  that 
we  may  perceive  the  actual  existence  of  a  body  of 
men  following  the  law  as  a  profession,  in  which  is 
involved  the  notion  of  advocacy  with  its  attendant 
rights  and  duties. 

44.  The  early  lawyers,  in  the  main,  seem  to 
have  been  ecclesiastics,  but  about  1207,  priests,  and 
persons  in  holy  orders  generally,  were  forbidden  to 
act  as  advocates  in  the  secular  courts,  and  from 
thenceforward  we  find  the  profession  composed  en- 
tirely of  a  specially  trained  class  of  laymen.  It  is 
said  that  when  the  prohibition  above  mentioned 
went  into  effect  those  of  the  clergy  who  had  adopted 
law  as  a  profession,  and  were  unwilling  to  be  de- 
prived of  this  means  of  livelihood,  assumed  a  coif- 
fure, or  close-fitting  head-dress,  to  hide  the  clerical 
tonsure,  and  this  became  the  distinguishing  badge 
of  the  legal  profession  for  many  years  thereafter.^^ 
To  this  circumstance  is  also  ascribed  that  peculiar 
feature  of  the  modern  English  barrister — the  wig. 

45.  The  first  persons  regularly  licensed  to  ap- 
pear as  advocates  in  the  king's  courts  were  called 
"Serjeants,"  although  their  full  official  title  seems 
to    have  been  Servientes  Domini  Regis  ad  legum, 

28  This  is  the  accepted  theory  but  it  has  been  denied  by  a 
late  writer  who  contends  that  the  coif  was  honorably  as- 
sumed by  the  early  lawyers  as  a  distinctive  badge,  which,  like 
the  cap  of  the  doctor,  carried  with  it  the  idea  of  special  au- 
thority and  learning.     See,  Pulling,  Order  of  the  Coif,  24. 


30  ESSAYS    IN   LEGAL   ETHICS. 

that  is,  "Servants  at  law  of  our  Lord  the  King." 
Unlike  all  prior  advocates,  they  were  a  part  of  the 
court  itself;  were  regularly  appointed  by  royal  pat- 
ent; were  admitted  only  upon  taking  an  oath;  had 
a  monopoly  of  all  the  practice,  and  were  directly 
amenable  to  the  king  as  parts  of  his  judicial  sys- 
tem. The  fundamental  ideas  involved  in  the  crea- 
tion of  this  class  have  never  been  abandoned,  and, 
notwithstanding  that  the  class  itself  by  the  name 
"serjeants"  has  ceased  to  exist,  they  are  still  the 
distinguishing  characteristics  of  the  bar  in  all 
countries  where  the  English  common  law  prevails. 

46.  For  several  generations  the  Serjeants  con- 
stituted the  entire  bar,  but  about  the  time  of  Ed- 
ward II.  other  persons  came  to  be  admitted  to  prac- 
tice under  the  name  "Counsellors  at  law,"  and,  until 
very  recent  years,  a  distinction  was  made  in  Eng- 
land between  Serjeants  and  counsellors,  the  former 
being  the  ranking  class.  At  present  the  order  of 
serjeants^^  is  extinct. 

47.  The  writer  has  dwelt  at  length  on  this 
genesis  of  the  legal  profession  for  the  reason  that 
much  of  the  customary  observance,  rules  of  conduct, 
and  professional  morality  which  at  present  obtain, 
arose  from  and  grew  out  of  the  character  of  these 
early  practitioners  and  the  relations  they  sustained. 

48.  Early  concepts  of  professional  duty. 
As  stated  in  the  foregoing  paragraph,  the  first  ad- 

29  Frequently  called  the  "order  of  the  coif,"  in  allusion  to 
the  head-dress. 


THE    OFFICE   OF    THE    ADVOCATE.  3 1 

vocates  admitted  to  practice  in  the  courts  were 
called  "Servants  at  law  of  our  Lord  the  King,"  a 
title,  observes  one  writer,^*^  that  "has  stereotyped  the 
functions  of  an  English  barrister  at  all  times."  That 
is,  the  bar  is  an  integral  part  of  the  judicial  sys- 
tem, an  assistant  in  the  administration  of  justice, 
and  as  such  it  occupies  a  peculiar  and  unique  posi- 
tion with  reference  both  to  the  bench  and  the  pub- 
lic. The  oath  of  the  ancient  advocate  bound  him 
to  serve  both  the  king  and  "his  people,"  thus  pre- 
scribing, as  it  were,  a  divided  allegiance,  and  this 
character,  impressed  upon  the  profession  at  its  very 
inception,  has  never  been  changed. 

49.  The  Serjeant,  being  thus  doubly  bound,  was 
required  to  act  with  absolute  good  faith  towards 
both  the  judges  and  the  clients,  owing  no  more  duty 
to  one  than  to  the  other.  As  representing  the  king 
he  was  bound  to  avoid  all  deceit  upon  the  court  and 
to  act  uprightly  in  the  conduct  of  his  business;  as 
representing  the  people  he  was  bound  to  give  honest 
advice  and  his  best  aid  to  the  suitor.  Time  has 
changed  the  complexion  of  the  bar  in  many  respects, 
but  these  fundamental  ideas  of  professional  duty 
remain  unaltered. 

50.  Division  of  legal  labor.  In  the  United 
States  a  licentiate  in  law  is  admitted  to  practice  as 
an  "attorney  and  counsellor,"  a  combination  of 
names  and  functions  unknown  to  the  English  law. 
We  have  seen  that  the  English  barrister  was  made  a 

3"  Inderwick,  The  King's  Peace,  93 


32        ESSAYS  IN  LEGAL  ETHICS. 

part  of  the  court.  His  office  was  as  distinct  and 
well  defined  as  that  of  the  judge,  who,  in  the  com- 
mon law  courts,  was  always  taken  from  the  ranks 
of  the  bar.  He  became  an  actual  sworn  assistant 
in  the  administration  of  justice.  It  was  his  duty 
to  advise  the  court  upon  the  law  of  the  case  and  to 
advise  and  assist  the  suitor  in  presenting  his  evi- 
dence, and  to  both  he  was  required  to  act  with  the 
utmost  fairness  and  good  faith. 

51.  But  to  enable  him  to  properly  fulfill  the 
duties  involved  in  his  divided  allegiance  to  *'the 
king  and  his  people,"  and  to  preserve  an  independ- 
ence of  judgment  and  action  which,  it  was  contend- 
ed, could  not  be  guaranteed  if  by  any  means  the 
counsel  should  be  pecuniarily  interested  in  the  result 
of  the  litigation,^^  there  grew  up  a  custom  of  in- 
tervention between  the  advocate  and  the  client  by  a 
class  known  as  "attorneys  and  solicitors."  The  at- 
torney meets  the  client,  enters  his  appearance  upon 
the  record,  prepares  and  files  the  pleadings,  and 
generally  manages  the  case  in  all  of  its  details,  ex- 
cept the  trial.  At  the  trial  the  counsellor,  or  bar- 
rister, assumes  charge,  receiving  his  instructions 
from  the  attorney. 

52.  This  distinction  of  practitioners  and  divis- 
ion of  labor  has  never  prevailed  to  any  appreciable 
extent  in  the  United  States.     It  is  a  medieval  Eng- 

81  In  theory  the  English  barrister  makes  no  charge  for 
his  services,  his  emoluments  being  in  the  nature  of  an  honor- 
arium. 


THE    OFFICE    OF    THE    ADVOCATE.  33 

lish  exotic  which  did  not  seem  to  thrive  in  our 
soil,  and,  while  traces  of  the  practice  are  observable 
during  the  earlier  years  of  the  Republic,  particu- 
larly in  the  federal  courts,  the  dual  character  soon 
came  to  be  assumed  by  the  same  person.  As  the 
conventional  rules  governing  the  two  classes  were 
in  many  respects  dissimilar,  the  result  of  this  union 
of  duties  has  been  to  produce  a  code  of  ethics  dif- 
fering in  some  particulars  from  that  which  obtains 
at  the  English  bar. 

53.  General  duties  of  the  advocate.  No 
very  specific  enumeration  of  the  duties  of  the  advo- 
cate has  ever  been  made  by  statute,  either  in  Eng- 
land or  America.  In  some  instances  courts  have 
spoken  and  announced  a  rule  of  conduct  for  the 
particular  case,  but,  in  the  main,  the  ethical  code  of 
the  profession  is  unwritten.  On  several  occa- 
sions sporadic  attempts  have  been  made  to  intro- 
duce something  of  this  kind  into  the  codes  of  civil 
procedure,^^  apparently  under  the  mistaken  idea 
that  a  moral  principle  is  suspectible  of  the  same 
method  of  treatment  as  the  axioms  of  mathematics. 
The  basis  for  most  of  these  attempts  is  the  ancient 
oath  administered  to  advocates  by  the  laws  of  Ge- 
neva,^^  and  the  prescriptions  of  professional  duties 

•■^2  See,  Report,  Com.   Code  Civ.   Pro.   N.   Y.   §   511;   Code, 
Ala.  §  791. 

/ 33  The  oath  referred  to  is  as  follows: 
'  "I  swear  before  God, 

To  be  faithful  to  the  Republic  and  the  canton  of  Genera ; 


34        ESSAYS  IN  LEGAL  ETHICS. 

have  usually  been  but  feeble  paraphrases    of    that 
instrument. 

54.  Fortunately,  for  the  bar  and  for  the  public, 
there  are  no  rules  of  morality  for  the  lawyers  which 
do  not  apply  with  equal  force  to  the  laity,  and  it 
is  well  that  there  should  not  be.  The  lawyer  is 
pretty  much  what  the  laity  makes  him.  The  char- 
acter of  the  bar  is  but  a  reflex  of  the  character  of 
the  community.  As  has  been  well  said,  "An  un- 
scrupulous bar  could  not  exist  in  a  high-minded 
community ;  and  if  anywhere  a  corrupt  legal  profes- 
sion is  to  be  found  it  is  found  in  the  midst  of  a  cor- 
rupt and  corrupting  people."^^  This  is  the  lesson 
of  history  and  the  experience  of  all  the  ages.^^ 

Never  to  depart  from  the  respect  due  to  the  tribunals  and 
authorities ; 

Never  to  counsel  or  maintain  a  cause,  which  does  not  ap- 
pear to  be  just  or  equitable,  unless  it  be  the  defense  of  an 
accused  person ; 

Never  to  employ  knowingly,  for  the  purpose  of  maintain- 
ing the  causes  confided  to  me,  any  means  contrary  to  truth, 
and  never  to  seek  to  mislead  the  judges  by  any  artifice  or 
false  statement  of  fact  or  law ; 

To  abstain  from  all  offensive  personality,  and  to  advance 
no  fact  contrary  to  the  honor  or  reputation  of  the  parties,  if 
it  be  not  indispensable  to  the  cause  with  which  I  may  be 
charged ; 

Not  to  encourage  either  the  commencement  or  the  continu- 
ance of  a  suit  from  any  motive  of  passion  or  interest; 
\    Not  to   reject,  for   any  considerations  personal  to  myself, 
the  cause  of  the  weak,  the  stranger,  or  the  oppressed." 

=»*  Commrs.  Report.  N.  Y.  Code  Civ.  Pro.  §  511. 

•''5  This  phase  of  our  subject  finds  an  apt  illustration  in  the 
conditions    which    prevailed    at    Rome    during    the    declining 


THE    OFFICE    OF    THE    ADVOCATE.  35 

55.  Neither  is  it  possible  to  prescribe  rules 
which  shall  determine  an  attorney's  duty  or  dictate 
his  action  in  the  varying  phases  of  each  particular 
case,  and  about  all  that  can  be  said  is  that  he 
should  be  guided  in  a  general  way  by  recognized 
usages,  the  prevailing  moral  sentiment,  and  the  sug- 
gestions of  his  own  conscience.^^     And  by  the  latter 

years  of  the  empire  and  which  Gibbon  has  so  graphically  de- 
scribed in  the  following  words : 

"In  the  decline  of  Roman  jurisprudence,  the  ordinary  pro- 
motion of  lawyers  was  pregnant  with  mischief  and  disgrace. 
The  noble  art  which  had  once  been  preserved  as  the  sacred 
inheritance  of  the  patricians  was  fallen  into  the  hands  of 
freedmen  and  plebeians,  who,  with  cunning  rather  than  with 
skill,  exercised  a  sordid  and  pernicious  trade.  Some  of  them 
procured  admittance  into  families  for  the  purpose  of  foment- 
ing differences,  of  encouraging  suits  and  of  preparing  a  har- 
vest of  gain  for  themselves  or  their  brethren.  Others,  recluse 
in  their  chambers,  maintained  the  dignity  of  legal  professors 
by  furnishing  a  rich  client  with  subtleties  to  confound  the 
plainest  truths,  and  with  arguments  to  color  the  most  un- 
justifiable pretensions.  The  splendid  and  popular  class  was 
composed  of  the  advocates,  who  filled  the  Forum  with  the 
sound  of  their  turgid  and  loquacious  rhetoric.  Careless  of 
fame  and  justice,  they  are  described,  for  the  most  part,  as 
ignorant  and  rapacious  guides,  who  conducted  their  clients 
through  a  maze  of  expense,  of  delay,  and  of  disappointment, 
from  whence,  after  a  tedious  series  of  years  they  were  at 
length  dismissed,  with  their  patience  and  fortune  almost  ex- 
hausted." 

3^  In  a  few  states  bar  associations  have  made  prescriptions 
of  moral  duties  for  the  guidance  of  their  members,  but  these 
attempts  to  codify  principles  do  not  seem  to  be  very  suc- 
cessful. Indeed,  "moral  duty"  is  no  more  susceptible  of  defi- 
nition than  "fraud"  or  any  of  the  other  terms  which  the 
law  has  refused  to  define. 


36  ESSAYS    IN   LEGAL   ETHICS. 

is  not  meant  the  promptings  of  wayward  impulse 
but  the  educated,  judicial  conscience,  that  carefully 
distinguishes  the  relative  positions  of  rights  and 
duties  in  all  their  bearings. 

56.  The  whole  duty  of  the  lawyer  is  tersely  sum- 
marized in  the  oath  of  office  now  generally  admin- 
istered in  all  of  the  states  as  well  as  in  the  federal 
courts.  This,  in  general  terms,  requires  him  to  up- 
hold the  law;  to  demean  himself,  as  an  officer  of 
the  court,  uprightly;  to  be  faithful  to  his  trust.  No 
more  could  be  required;  no  less  should  be  demand- 
ed. To  attempt  to  define  the  infinite  variety  of  as- 
pects and  phases  that  are  involved  in  the  foregoing 
simple  enumeration  would  be  an  impossible  task. 
Nor  is  such  a  definition  necessary. 

57.  In  the  pages  that  follow  I  have  endeavored 
to  discuss,  in  a  necessarily  brief  and  desultory  man- 
ner, a  few  of  the  salient  features  of  our  subject, 
and  have  selected  those  topics  which  seem  of  most 
importance  to  the  young  and  inexperienced  attor- 
ney. Some  of  the  propositions  will  receive  a  ready 
confirmation  by  his  own  moral  sense  of  right  and 
wrong.  Some  may  appear  a  trifle  finical,  particular- 
ly those  which  relate  to  professional  etiquette,  but 
it  must  be  remembered  that  they  represent  the  old 
and  long-established  customs  of  the  most  respect- 
able and  conservative  of  all  the  learned  professions. 
The  generation  that  is  laying  down  the  burdens  of 
professional  life  expects  from  those  who  are  coming 
in  to  take  them  up,  a  careful  adherence  to  the  old 


THE    OFFICE   OF    THE    ADVOCATE.  37 

customs  and  established  usages.  They  were  given 
to  us  by  the  fathers  aforetime,  to  be  guarded  with 
jealous  care  and  transmitted  to  our  successors  in  the 
same  form  in  which  they  were  received.  They  are 
a  part  of  the  glorious  inheritance  of  the  American 
bar;  the  characteristics  which  serve  to  distinguish 
us ;  the  badges  of  our  respectability.  Let  no  modern 
spirit  of  innovation  disturb  these  ancient  landmarks. 

58.  Relations  of  the  Bench  and  Bar.  We 
have  seen  that  when  advocacy  finally  became  an  ex- 
clusive calling  and  the  advocates  a  distinct  class  with 
special  privileges,  it  was  provided,  among  other 
things,  that  the  judges  of  the  king's  courts  should 
always  be  selected  from  their  ranks.  The  educa- 
tion and  associations  of  the  judges  and  lawyers 
were  therefore  the  same,  and  they  invariably  ad- 
dressed each  other  as  ''brother,"  both  in  public  and 
private.^^  This  intimate  relationship  has  been  gen- 
erally continued,  and,  as  a  rule,  the  bench  is  still  re- 
cruited from  the  legal  profession.  This  is  strictly 
true  of  the  federal  courts  and  generally  so  of  the 
state  courts,  although  in  the  latter  we  occasionally 
meet  with  the  anomaly  of  a  man  presiding  over  a 
court  in  which  he  has  never  been  admitted  to 
practice. 

59.  But,  happily,  the  condition  just  noted  is  be- 
coming every  day  more  rare,  and  the  general  prop- 
osition holds  good  that  judges  must  first  be  law- 
yers. The  very  fact,  then,  that  one  of  the  great  co- 
ordinate departments  of  government  is  administered 

37  Inderwick,  King's   Peace,  94. 


38  ESSAYS    IN    LEGAL   ETHICS. 

by  men  selected  only  from  one  profession  gives  to 
that  profession  a  certain  pre-eminence  which  calls 
for  a  high  standard  of  morals  as  well  as  intellectual 
attainment.  The  integrity  of  the  judiciary  is  the 
safeguard  of  the  nation,  but  the  character  of  the 
judges  is  practically  but  the  character  of  the  law- 
yers. Like  begets  like.  A  degraded  bar  will  inev- 
itably produce  a  degraded  bench,  and  just  as  cer- 
tainly may  we  expect  to  find  the  highest  excellence 
in  a  judiciary  drawn  from  the  ranks  of  an  enlight- 
ened, learned,  and  moral  bar. 

60.  Not  only  are  the  judges,  the  interpreters  of 
the  laws,  drawn  from  the  ranks  of  the  lawyers,  but 
that  profession,  more  than  all  others,  contributes  to 
fill  the  halls  of  legislation  and  supply  the  chairs  of 
administrative  offices  of  high  position  and  responsi- 
bility.^^ Learning,  honor,  and  integrity  are  alike 
necessary  in  those  who  are  called  to  discharge  these 
great  trusts;  the  future  stability  of  the  country 
rests,  in  very  large  measure,  on  those  who  make  and 
execute  the  laws,  and  our  guarantees  for  the  peace- 
ful enjoyment  of  life,  liberty  and  property  must  be 
sought  in  their  character  and  moral  qualities. 

^^  It  is  said  that  "twenty-five  out  of  fifty-six  signers  of  the 
Declaration  of  Independence,  50  out  of  55  members  of  the 
convention  which  framed  our  Federal  Constitution,  19  out  of 
24  Presidents,  17  out  of  23  Vice-Presidents  of  the  United 
States,  and  219  out  of  234  Cabinet  officers,  were  lawyers ; 
that  more  than  two-thirds  of  the  United  States  Senators,  and 
about  one-half  our  Representatives  in  Congress,  and  Govern- 
ors of  the  several  states,  and  the  majority  of  our  diplomats 
and  representatives  in  foreign  countries  have  been  lawyers." 


CHAPTER  III. 

THE  ADVOCATE  AND  THE  COURTS. 

Generally  considered — The  summary  jurisdiction  of  courts — 
Methods  of  summary  discipline — Nature  of  disciplinary 
power — Effect  of  discipline  on  the  legal  rights  of  the 
citizen — Grounds  for  discipline — Discipline  for  unoffi- 
cial misconduct — Misconduct  without  discipline. 

6i.  Generally  considered.  The  legal  pro- 
fession occupies,  in  many  respects,  an  unique  posi- 
tion among  the  callings  and  occupations  of  men. 
While  its  general  features  bear  some  similitude  to 
the  other  learned  professions  it  differs  from  them  in 
many  important  particulars.  The  lawyer,  like  the 
physician,  serves  the  public;  the  one  as  an  assistant 
in  the  protection  and  preservation  of  rights,  the 
other  in  the  protection  and  preservation  of  health; 
but  here  the  parallel  ends.  The  lawyer  not  only 
serves  the  public — that  is,  the  individuals  who  com- 
pose the  body  politic — but  he  also  serves  the  body 
politic  itself — the  state,  and  for  this  purpose  neces- 
sarily occupies  a  dual  relation,  which  distinguishes 
his  profession  from  all  others.  He  not  only  prac- 
tices in  the  courts  but  is  himself  an  integral  part 
of  the  judicial  machinery,  and  as  such  is  subject  to 
a  disciplinary  power  from  which  the  members  of 
other  professions  are  exempt.     He  enjoys  certain 

39 


40  ESSAYS    IN    LEGAL   ETHICS. 

exclusive  privileges  and  is  under  certain  special  ob- 
ligations and  subject  to  certain  responsibilities.  For 
an  abuse  of  his  privileges,  as  well  as  for  derelictions 
of  professional  duty,  he  may  be  compelled  to  ac- 
count, not  only  at  the  bar  of  public  opinion  but  also 
of  the  court  that  admitted  him  to  practice.  In  ad- 
dition to  the  punishments  inflicted  by  society  he 
must  also  bear  the  marks  of  sovereign  displeasure, 
and,  in  this  respect,  the  code  of  professional  ethics 
resembles  a  code  of  law. 

62.  Summary  jurisdiction  of  courts.  The 
summary  jurisdiction  which  a  court  is  permitted  to 
exercise  over  attorneys  and  counsellors,  while  to 
some  extent  conferred  by  statute,  seems  to  originate 
in  the  inherent  disciplinary  power  which  the  court 
possesses  over  its  attorneys  as  officers  of  the  court. 
It  is,  in  fact,  but  a  continuation  of  the  old  ideas  that 
were  involved  in  the  original  appointment  of  the 
Serjeants,  and  has  always  formed  a  part  of  the  judi- 
cial scheme  of  every  country  where  the  common  law 
prevails.  The  attorney  of  the  United  States,  no  less 
than  the  barrister  of  England,  still  represents  the 
sovereign  as  well  as  the  people.  He  is  a  part  of  the 
judicial  machinery:  an  assistant  in  the  administra- 
tion of  justice;  and  the  theory  is  that  as  such  of- 
ficer of  the  court  he  is  responsible  to  it  for  profes- 
sional misconduct.^^ 


107  (U 
case,  120 


Ex  parte  Garland,  4  Wall  (U.  S.)  333;  Ex  parte  Wall, 
(U.  S.)  265;  Ex  parte  Biggs,  64  N.  C.  202;  Whitcomb's 
,  120  Mass.  118. 


THE  ADVOCATE  AND  THE  COURTS.   4I 

63.  The  opinion  at  one  time  seems  to  have  been, 
that  the  jurisdiction  extended  only  to  attorneys  em- 
ployed as  such  in  suits  depending  in  court,  and  that 
it  could  be  exercised  only  to  hold  them  to  their 
duty  in  such  suits.  But  a  broader  view  is  now  taken, 
and  it  would  appear  to  be  well  settled  that  such 
jurisdiction  applies  to  any  matter  in  which  an  at- 
torney has  been  employed  by  reason  of  his  profes- 
sional character,^^  and  extends  to  all  cases  of  pro- 
fessional misconduct,  whether  in  or  out  of  court.^* 

64.  The  exercise  of  this  summary  jurisdiction 
rests  in  the  sound  discretion  of  the  court,  but  must 
be  employed  with  caution  and  moderation."*^  The 
power  is  not  an  arbitrary  or  despotic  one,  to  be  ex- 
ercised at  the  mere  pleasure  of  the  presiding  judge, 
or  from  motives  of  passion,  prejudice  or  personal 
hostility,  for  it  is  quite  as  necessary  for  the  proper 
administration  of  justice  that  the  rights  and  inde- 
pendence of  the  bar  should  be  guarded  and  main- 
tained as  the  rights  and  dignity  of  the  court  itself.^^ 

65.  Methods  of  summary  discipline.  For 
any  flagrant  dereliction  or  disregard  of  professional 
duty  on  the  part  of  the  attorney  the  license  by  which 
he  was  admitted  to  practice  may  be  revoked.  This 
is  known  as  dishannent,  and  the  effect  of  a  disbar- 

■*<>  Anderson  v.  Bosworth,  15  R.  I.  443;  Ex  parte  Staats,  4 
Cow.   (N.  Y.)  76. 

*i  People  V.  Green,  7  Colo.  237. 

*2  State  V.  Kirke,  12  Fla.  287 ;  Ex  parte  Burr,  9  Wheat. 
(U.  S.)  529. 

*3  Ex  parte  Sercombe,  19  How.  (U.  S.)  9. 


42  ESSAYS    IN    LEGAL   ETHICS. 

ment  is  the  utter  extinction  of  professional  char- 
acter. It  is  only  for  grave  ofifenses,  however,  that 
this  method  of  discipline  is  resorted  to.  Sometimes 
there  is  inflicted  a  qualified  disbarment,  as  that  the 
attorney  may  not  practice  in  the  courts  for  a  specified 
period.  This  is  known  as  suspension,  and  its  effect, 
while  it  lasts,  is  the  same  as  disbarment. 

66.  By  far  the  more  common  methods  of  dis- 
cipline are  reprimands  and  /ines,  the  latter  ofttimes 
entailing  a  deprivation  of  personal  liberty  until  paid 
or  discharged. 

67.  For  violations  of  professional  etiquette  or 
breaches  of  decorum,  particularly  if  committed  in 
the  presence  of  the  court,  the  offending  attorney 
may  be  punished  by  reprimand,  fine  or  imprison- 
ment. Where  the  offense  amounts  to  what  is  tech- 
nically known  as  contempt  of  court  the  offender  is 
usually  fined,  and  may  be  committed  until  the  fine 
is  paid.  Where  the  contempt  is  of  a  flagrant  char- 
acter imprisonment  is  frequently  inflicted.  These 
punishments  are  resorted  to  for  the  purpose  of  vin- 
dicating the  outraged  dignity  of  the  court,  for  un- 
less the  solemn  and  dignified  character  of  the  court 
is  maintained  the  administration  of  law  and  the 
forms  of  justice  would  soon  sink  into  a  meaningless 
travesty. 

68.  But  the  lawyer  is  not  alone  a  gentleman; 
he  is  a  sworn  minister  of  justice.  His  ofiice  im- 
poses high  moral  duties  and  grave  responsibilities, 
and  he  is  held  to  a  strict  fulfillment  of  all  that  these 


THE    ADVOCATE   AND    THE    COURTS.        43 

matters  imply.  Interests  of  vast  magnitude  are  in- 
trusted to  him;  confidence  is  reposed  in  him;  Hfe, 
Hberty  and  property  are  committed  to  his  care.  He 
must  be  equal  to  the  responsibilities  which  they 
create,  and  if  he  betrays  his  trust,  neglects  his 
duties,  practices  deceit,  or  panders  to  vice,  then  the 
most  severe  penalty  should  be  inflicted  and  his 
name  stricken  from  the  roll. 

69.  Nature  of  disciplinary  power.  It  would 
seem  from  the  character  and  consequences  of  repri- 
mands, fines  and  temporary  suspensions,  that  they 
should  be  regarded  as  punishments  inflicted  for  vio- 
lations of  professional  duty,  and  the  same  idea  has 
been  extended  to  disbarment.  The  better  consid- 
ered opinions,  however,  distinguish  between  the 
first  mentioned  matters  and  disbarment,  holding 
that  the  power  to  revoke  the  right  to  practice  rests 
on  different  grounds  from  the  right  to  punish.^* 
Indeed,  the  element  of  punishment,  although  un- 
doubtedly present,  does  not  seem  to  be  contemplat- 
ed in  disbarment  proceedings,  and  the  measure  is 
regarded  only  as  an  act  of  protection.  That  is,  that 
a  person  who,  by  practices  in  derogation  of  his  of- 
ficial oath  and  by  conduct  unbecoming  an  officer  of 
the  court,  has  rendered  himself  unworthy  of  his 
office  and  whose  retention  therein  will  operate  to  the 
manifest  detriment  of  the  profession,  should  be  re- 

**Ex  parte  Robinson,  19  Wall  (U.  S.)  505;  Jackson  v. 
State,  21  Tex.  668. 


44  ESSAYS    IN    LEGAL   ETHICS. 

moved,  not  as  a  punishment  of  the  offender  but  as  a 
protection  to  the  court,  the  bar  and  the  public.*^ 

70.  Discipline  does  not  affect  legal 
RIGHTS.  It  will  be  perceived  from  the  foregoing 
that  the  summary  power  exercised  by  courts  in  the 
punishment  or  exclusion  of  offending  attorneys  rests 
almost  wholly  on  ethical  grounds  and  applies  only 
to  professional  misconduct.  If  the  matter  in  ques- 
tion is  entirely  unconnected  with  the  attorney's  pro- 
fessional character,  or  if  the  misconduct  charged  re- 
lates to  something  outside  of  the  line  of  professional 
duty,  then,  as  a  rule,  the  court  will  have  no  right  to 
interfere,^^  and,  generally,  charges  that  affect  the 
attorney's  character  only  as  a  man  or  his  integrity 
as  a  citizen,  will  furnish  no  grounds  for  disciplinary 
proceedings.'*'' 

71.  Thus,  it  may  often  happen  that  a  client  feels 
aggrieved  at  the  action  of  his  counsel  in  the  with- 
holding of  funds  that  have  been  received  in  the 
course  of  his  professional  employment.  In  this 
event  he  may  apply  to  the  court  to  discipline  the 
attorney,  and,  in  a  proper  case,  the  court  may  inter- 
fere in  a  summary  manner  to  compel  the  perform- 
ance of  a  professional  duty,  for  the  liability  of  an 
attorney  to  summary  process  for  the  payment  of 

*5  Ex  parte  Wall,  107  U.  S.  265;  State  v.  Winton,  11  Oreg. 
456;  Ex  parte  Biggs,  64  N.  C.  202. 

«  Matter  of  Huson,  62  How.  Pr.  (N.  Y.)  358;  People  v. 
Appleton,   105  111.   474. 

47  People  V.  Allison,  68  111.  151. 


THE   ADVOCATE   AND   THE   COURTS.       45 

money  in  his  hands  belonging  to  his  client  has  fre- 
quently been  recognized.^^  But  a  proceeding  of 
this  kind  will  not  be  entertained  when  the  case  sim- 
ply presents  a  difference  of  opinion  as  to  the  amount 
to  be  charged  and  retained  for  services,  for  courts 
cannot  thus  undertake  to  adjust  accounts  between 
attorney  and  client.'*^  A  jury  is  the  proper  tribunal 
to  ascertain  and  determine  what  is  fairly  due  to  par- 
ties under  their  contracts,  and,  unless  the  charge  in- 
volves a  palpable  breach  of  duty  and  raises  a  pre- 
sumption of  bad  faith,  a  court  will  not  interfere. 

^2.  But,  as  has  been  shown,  an  attorney  is  an 
officer  of  the  court,  and  the  court  which  admits 
him  to  the  privilege  of  practicing  at  its  bar  may, 
and  should,  require  of  him  the  fulfillment  of  the 
obligations  that  attend  the  privilege.  And,  in  the 
furtherance  of  this  right,  the  court  may  inquire 
into  transactions  between  attorney  and  client  and 
compel  such  conduct  as  the  circumstances  of  the 
case  may  seem  to  demand.  Nor  is  such  summary 
process  in  contravention  of  the  right  of  trial  by  jury, 
for  when  a  court  undertakes  to  enforce  the  plain 
duty  of  its  officer  it  is  doing  that  which  a  jury  can- 
not do. 

73.  Grounds  for  discipline.  Upon  his  ad- 
mission to  the  bar  an  attorney  makes  a  solemn 
promise  that  he  will  demean  himself,  as  an  attorney 
and  counsellor  of  the  court,  uprightly  and  accord- 

*8  Orr  V.  Tanner,  12  R.  I.  94. 
*^  Burns  v.  Allen,  15  R.  I.  32. 


46  ESSAYS    IN   LEGAL   ETHICS. 

ing  to  law,  and  that  he  will  faithfully  perform  the 
duties  of  his  office.  This  promise  he  seals  with  an 
oath.  In  return  for  the  privileges  which  his  ad- 
mission confers  he  is  held  to  a  strict  fulfillment  of 
his  promise^  and  its  violation  calls  for  the  exercise 
of  the  Courtis  disciplinary  powers.  He  is  bound  to 
observe  all  of  the  rules  of  practice,  as  well  as  such 
as  relate  only  to  the  decorum  of  the  court,  whether 
written  or  unwritten.  Nor  is  his  obligation  dis- 
charged by  merely  observing  the  conventional 
rules  of  courteous  demeanor  in  open  court;  he 
must  abstain,  out  of  court,  from  the  indulgence  of 
any  practice  likely  to  bring  discredit  upon  himself 
as  a  practitioner  or  reflect  unfavorably  upon  the 
court.  If  his  conduct  is  such  as  to  show  that  he 
is  unfitted  to  practice  he  may  be  suspended  or  dis- 
barred, and  it  is  immaterial  for  this  purpose  that 
such  acts  neither  constitute  a  criminal  offense  nor 
create  a  civil  liability .^*^  It  is  enough  that  they  in- 
dicate such  an  absence  of  moral  character  as  to  ren- 
der him  unworthy  of  public  confidence.^^  The  dif- 
ferent phases  of  the  subject  will  be  discussed  in  the 
succeeding  chapters. 

74.  Discipline  for  unofficial  misconduct. 
As  a  general  rule  a  court  will  not  assume  jurisdic- 
tion to  summarily  discipline  one  of  its  officers  for 

^oEx  parte  Cole,  i  McCrary  (C.  Ct.)  405;  Bradley  v. 
Fisher,  13  Wall  (U.  S.)  335;  People  v.  Barker,  56  111.  299; 
Beene  v.  State,  22  Ark.  157. 

51  Re  Boone,  83  Fed.  Rep.  944. 


THE    ADVOCATE    AND    THE    COURTS.        47 

misconduct  alleged  to  have  been  committed  in  his 
private  character.  In  such  cases  relief  can  be  ob- 
tained only  by  a  suit  regularly  instituted  in  the 
proper  tribunal  at  the  instance  of  the  party  who 
claims  to  have  been  injured.^ ^  So,  too,  it  would 
seem  that  where  acts  charged  against  an  attorney 
were  not  done  in  his  official  character,  notwith- 
standing they  may  be  of  an  indictable  nature,  if  they 
are  not  confessed,  there  should  be  a  regular  con- 
viction before  a  court  will  strike  his  name  from  the 
roll.53 

75.  But,  while  the  foregoing  statements  may  be 
taken  as  expressive  of  the  general  rule,  and  while  the 
rule  will,  in  most  cases  that  come  within  it,  be  ap- 
plied, yet  it  is  not  without  exceptions.  There  may 
be  cases  where  an  attorney's  misconduct  in  his  pri- 
vate capacity  merely  is  of  so  gross  a  character  as 
to  warrant  summary  judicial  intervention.^**  It  is 
an  essential  condition  to  admission  to  practice  that 
the  applicant  shall  be  a  man  of  good  moral  charac- 
ter. It  is  not  enough  that  he  shall  be  learned  in 
the  law  and  competent  to  conduct  litigation.  He 
must,  in  addition,  furnish  proof  that  he  is  fit  to  be 
entrusted  with  the  confidences  which  his  office  in- 
vites, and  failing  in  this  a  court  may  deny  him  ad- 

52  People  V.  Allison,  68  111.  151. 

53  On   this   point   the   authorities  are  not  agreed,   but   the 
text  states  the  general  and  better  considered  rule. 

5*  People  V.  Appleton,  105  111.  474. 


48  ESSAYS    IN   LEGAL   ETHICS. 

mission.'^^  The  primary  object  of  this  is  to  main- 
tain a  high  standard  of  moral  excellence  in  the  pro- 
fession and  conserve  the  ancient  dignity  and  re- 
spectability of  the  bar.  This  being  true,  it  neces- 
sarily follows  that  this  essential  character  should 
be  maintained  after  admission,  and  when  the  con- 
duct of  the  licentiate  clearly  shows,  either  that  the 
court  was  deceived  at  the  time  of  his  admission,  or 
that  there  has  been  a  moral  degeneracy  since  that 
time,  a  proper  case  for  discipline  may  be  presented. 
y^.  We  have  seen  that  legal  ethics  has  to  do 
only  with  professional  character  and  with  miscon- 
duct in  a  professional  capacity.  This  is  true.  But 
a  lawyer  is  yet  a  man.  We  cannot  wholly  separate 
the  professional  abstraction  from  the  concrete  hu- 
man personality,  and  while  courts  in  some  instances 
have  assumed  so  to  do,  yet  the  result  has  usually 
been  detrimental  to  the  fair  fame  and  high  standing 
of  the  profession.  It  is  further  true,  that  where  a 
moral  delinquency  amounts  to  a  violation  of  legal 
duty  it  should  form  the  subject  of  judicial  investi- 
gation in  the  regular  courses  that  the  law  provides. 
Indeed,  to  do  otherwise  is  to  deny  justice  and  de- 
prive the  citizen  of  his  civil  rights.  But,  where  the 
fact  has  been  established,  where  it  has  been  clearly 
demonstrated  that  a  practitioner  is  a  dishonest  man, 
whether  he  was  acting  professionally  or  otherwise 
should  be  an  immaterial  question.    If  he  has  become 

55  Mill's  case,  i  Mich.  392 ;  Secomb's  case,  19  How.  (U.  S.) 
9;  Randall's  case,  11  Allen   (Mass.)  472. 


THE  ADVOCATE  AND  THE  COURTS.    49 

an  unworthy  member  of  society  he  is  unfit  to  repre- 
sent the  noble  profession  of  the  law.  He  has  vio- 
lated the  fundamental  condition  of  his  entrance  and 
forfeited  his  right  to  professional  recognition; 
hence,  he  should  no  longer  be  permitted  to  practice 
in  the  courts.  This  principle  is  fully  recognized, 
and  courts  frequently  strike  the  names  of  such  per- 
sons from  the  roll,  notwithstanding  the  particular 
offense  was  not  committed  in  a  professional 
capacity. 

jy.  Misconduct  without  discipline.  Not 
every  infraction  of  ethical  precept,  however,  will 
warrant  the  summary  intervention  of  a  court  or  the 
exercise  of  disciplinary  powers,  and  in  many  things 
the  offender  incurs  the  liability  of  no  greater  pun- 
ishment than  may  be  inflicted  by  the  force  of  public 
opinion.  Thus  the  bar  has  a  rigid  form  of  etiquette 
with  respect  to  many  transactions.  A  violation  of 
this  form  is  attended  only  by  a  loss  of  professional 
standing.  At  first  blush  this  punishment  does  not 
seem  very  severe,  and,  because  its  effect  is  not  al- 
ways immediately  apparent,  many  men  are  induced 
to  persist  in  practices  that  contravene  accepted 
standards  of  good  manners.  But,  in  the  end,  there 
is  scarcely  any  form  of  punishment  that  can  com- 
pare with  it. 

78.  There  is  not  a  man  living,  who,  in  his  in- 
most soul,  does  not  desire  to  be  well  thought  of  by 
his  associates,  however  much  he  may  affect  an  in- 
different exterior.     As  time  flows  on  this  desire 


50  ESSAYS    IN    LEGAL    ETHICS. 

deepens  and  intensifies,  and,  all  too  late,  he  finds 
that  his  professional  reputation  has  become  estab- 
lished and  that  he  is  regarded  as  a  trickster,  a  sharp- 
er, a  person  to  be  avoided,  or,  if  met,  to  be  watched 
and  distrusted.  And  when  this  reputation  has  once 
become  established  it  fastens  itself  to  the  individual 
with  a  tenacity  that  frequently  cannot  be  broken, 
even  by  a  subsequent  life  of  exemplary  conduct. 
Indeed,  so  firmly  does  this  reputation  become  fixed 
that,  in  many  instances,  it  survives  the  individual  and 
remains  to  taint  his  memory  long  after  he  is  dead. 
79.  Let  no  one  imagine,  then,  that  because  his 
unprofessional  practices  are  of  such  a  nature  as  to 
escape  judicial  scrutiny  they  may  be  followed  with 
impunity.  The  good  opinion  of  his  professional 
brethren  can  only  be  created  and  retained  by  a  strict 
observance  of  those  matters  which  long  experience 
and  common  consent  have  sanctioned,  and  with- 
out their  good  opinion  eminence  at  the  bar  is  im- 
possible, irrespective  of  whatever  attainments  he 
may  possess  in  the  way  of  learning  and  technical 
skill. 


CHAPTER  IV. 

PROMOTION    AND    PUBLICITY. 

Generally  considered — How  may  the  lawyer  reach  the  public — 
Personal  solicitation — Advertising,  when  and  how — 
Professional  cards,  and  how  they  may  be  used — News- 
paper advertising — Anonymous  announcements — Di- 
vorces— Bad  debts — Letters  and  circulars — Self  praise. 

80.  Generally  considered.  To  the  young 
attorney,  who  has  just  been  admitted  to  practice,  the 
all-important  question  is :  "What  shall  I  do  to  ob- 
tain business?"  The  merchant,  the  manufacturer, 
the  artisan,  or  even  the  common  laborer,  finds  but 
little  difficulty  in  solving  the  general  phases  of  the 
problem.  It  is  the  experience  of  most  persons  that, 
in  this  life,  we  generally  have  to  ask  for  what  we 
get.  As  a  rule,  but  little  comes  to  us  unsought.  A 
man  has  something  to  sell,  or  barter,  or  which  he 
desires  to  exchange.  To  effect  his  desires  he  must 
either  go  to  the  persons  with  whom  he  would  like  to 
trade  or,  by  some  means,  he  must  induce  them  to 
come  to  him.  There  is  no  escape  from  this  conclu- 
sion, and  the  absolute  soundness  of  the  proposition 
is  recognized  in  every  occupation  and  calling  ex- 
cept the  professions. 

81.  It  has  often  been  urged  in  criticism  of  the 
legal  profession  that  the  lawyer  is  a  creature  of  pre- 

51 


52  ESSAYS    IN    LEGAL    ETHICS. 

cedents.  To  a  limited  extent  this  is  true.  Now,  in 
the  early  days  of  advocacy,  it  was  held  to  be  incom- 
patible with  professional  dignity  for  a  lawyer  to  ten- 
der his  services  or  offer  to  conduct  a  case  in  court. 
His  province  lay  entirely  in  personal  learning  and 
skill,  and  the  stern  ethics  of  that  day  did  not  permit 
him  to  apply  to  others  to  make  a  trial  of  his  intel- 
lectual powers.  He  must  be  sought.  Of  course, 
there  were  many  whose  merits  were  either  never 
discovered  or  not  appreciated,  and,  as  a  consequence, 
"briefless  barristers"  abounded  in  profusion  in  and 
about  Westminster  Hall,  The  barrister  might  go 
hungry,  but  his  dignity  must  still  be  maintained, 
and  this  early  notion  of  dignity  has  remained  in 
various  modified  forms  until  the  present  day. 

82.  It  would  seem  to  be  a  present  rule  in  Eng- 
land that  a  counselor  shall  not  in  any  way,  nor 
under  any  pretence,  ask  for  practice,  and  notwith- 
standing that  he  plies  his  calling  for  hire  he  may 
not  solicit  custom.^^  This  anomalous  condition 
seems  to  be  founded  on  much  the  same  principle  as 
that  which  forbids  him  to  claim  his  fee  as  a  debt, 
and,  in  theory,  treats  that  as  a  mere  honorary  gra- 
tuity which  constitutes  in  fact  his  means  of  liveli- 
hood. But  this  rigorous  rule  has  long  ceased  to 
obtain  more  than  a  nominal  observance  in  England, 
and  never  seems  to  have  secured  a  practical  recogni- 
tion in  the  United  States. 

^^  Forsyth,  Hortensius  the  Advocate,  350.  This  seems  also 
to  be  one  of  the  cardmal  rules  of  the  French  bar;  see  Jones, 
History  of  the  French  Bar,  198. 


PROMOTION    AND    PUBLICITY.  53 

83.  One  reason  for  the  non-adoption  of  the 
rule  in  this  country  grows  out  of  the  union  of  the 
two  branches  of  the  legal  profession — attorneys  and 
counselors.  While  the  counselor  was  not  permitted 
to  solicit  no  such  inhibition  seems  to  have  been 
placed  upon  the  attorney.  But  the  attorney,  for 
many  years,  was  rather  looked  down  upon  by  his 
brother  at  the  bar.  Indeed,  he  was  not  regarded  as 
a  lawyer,  or,  at  best,  but  as  a  partial  lawyer  occu- 
pying a  mean  and  inferior  position.  Time  has  rem- 
edied this  matter  in  England,  while  in  the  United 
States  the  term  ''attorney"  has  come  to  have  a 
generic  significance  that  embraces  all  branches  of 
legal  practice. 

84.  But  this  old  notion  of  professional  dignity 
has  never  been  wholly  eradicated,  so  far,  at  least,  as 
respects  the  solicitation  of  clients.  In  a  general  way 
it  may  still  be  said  that  solicitation  is  unprofessional, 
and  notwithstanding  that  the  practitioner  is  an  at- 
torney he  is  also  a  counselor,  with  all  the  traditions 
of  his  legal  ancestry.  He  may  indeed  announce  his 
professional  character,  but  only  in  a  modest  and 
decorous  way.  He  may,  in  a  proper  manner  and 
upon  proper  occasions,  speak  of  his  profession  and 
even  of  his  own  connection  therewith,  but  cannot, 
without  violating  the  canons  of  good  taste,  as  well 
as  the  ethics  of  the  bar,  offer  his  services  for  sale 
nor  vaunt  his  own  abilities.  The  profession  of  law 
remains  today  what  it  always  has  been,  a  high  and 


54  ESSAYS    IN   LEGAL   ETHICS. 

honorable  calling,  and  no  one  invested  with  the  pres- 
tige which  it  confers  should  be  permitted  to  degrade 
it  to  the  level  of  a  mercenary  trade.  The  huckster, 
or  even  the  "hustler,"  has  mistaken  his  avocation 
when  he  selects  advocacy.  His  talents  will  show 
to  much  better  advantage  in  some  other  line  where 
his  commercial  instincts  will  not  be  shackled  by  an- 
cient conventionalities. 

85.  But  however  much  we  may  theorize  we  can- 
not escape  the  conclusions  announced  at  the  opening 
of  this  section.  The  lawyer  has  no  immunity  from 
the  common  lot  of  mankind.  He  must  live ;  and,  if 
he  is  to  live  by  his  profession,  he  must  have  clients. 
These  propositions  are  self-evident,  and  there  is  no 
way  of  evading  their  irrefutable  logic.  The  ques- 
tion, then,  would  seem  to  be :  "To  what  extent  may 
a  lawyer  solicit  custom  and  what  methods  may  he 
properly  employ?" 

86.  Personal  solicitation.  As  stated  in  the 
preceding  paragraph,  it  was  formerly  a  rule  of  gen- 
eral and  uniform  observance,  in  all  countries  where 
advocacy  was  practiced  as  an  exclusive  calling,  that 
it  was  beneath  the  dignity  of  an  advocate  to  solicit 
business,  and  this  rule  seems  to  have  been  of  such 
imperative  obligation  that  to  violate  it  in  any  re- 
spect was  to  lose  standing  at  the  bar.  In  England 
it  was  applied  with  practically  no  exception,  but  on 
the  continent,  where  the  right  to  demand  and  re- 
ceive fees  was  recognized,  it  was  qualified  by  the 


PROMOTION    AND    PUBLICITY.  55 

proviso  that  in  case  of  a  defense  an  advocate  might 
offer  his  services  gratuitously  -to  the  poor.^"^ 

8y.  If  we  are  to  regard  the  profession  of  law 
as  a  legitimate  means  of  livelihood  and  not  as  a 
mere  honorary  occupation,  then  it  should  be  gov- 
erned^ in  the  main,  by  the  same  rules  and  subjected 
to  the  same  tests  that  are  applied  to  other  honorable 
callings,  and,  if  this  be  true,  there  can  be  no  well- 
grounded  reasons  for  denying  to  the  lawyer  the 
same  opportunities  for  acquiring  practice  as  are  af- 
forded to  men  in  other  walks  of  life.  Nor  is  there 
any  impropriety  in  a  respectful  solicitation  of  busi- 
ness from  friends  and  acquaintances,  or  even  from 
the  general  public.  The  manner  in  which  this  shall 
be  accomplished  is  practically  the  only  question  to 
be  considered.  Indeed,  in  many  cases,  the  young 
attorney  must  resort  to  his  acquaintances  and  rely, 
to  some  extent,  on  their  good  offices  in  his  behalf. 
So  long  as  this  solicitation  is  made  in  a  modest  and 
decorous  manner  it  is  difficult  to  perceive  wherein 
any  injury  can  result  to  either  the  solicitor  or  the 
profession.  On  the  other  hand,  a  persistent  and  of- 
fensive assertion  of  self  will  usually  create  an  aver- 
sion in  the  minds  of  those  sought  to  be  affected. 

88.  This  phase  of  our  subject  has  produced  a 
large  amount  of  sentimental  gush  and  high-flown 
rhetoric,  and  students,  from  time  immemorial,  have 
been  admonished  that  law  should  be  pursued  for  its 
own  sake  and  not  for  gain;  that  the  philanthropic 
idea  should  alone  actuate  the  advocate  and  stimulate 

5^  Jones,  Hist.  French  Bar,  198. 


56  ESSAYS    IN   LEGAL   ETHICS. 

his  endeavors,  and  that  the  time-honored  rules  of 
the  bar  must  not  be  infringed.  In  a  way  all  of  this 
is  true,  yet  the  fact  remains  that  law  is  pursued  as 
a  lucrative  calling,  and  much  of  the  real  good  which 
the  advocate  is  enabled  to  accomplish  for  his  client 
results  from  this  fact.  It  is  a  further  fact  that  the 
ethical  idea  involved  in  solicitation  is  not  so  much  a 
regard  for  ancient  conventional  rules  as  a  proper 
deference  to  present  public  opinion  concerning  the 
dignity  of  the  legal  profession.  When  a  solicita- 
tion can  be  made  without  a  loss  of  professional  dig- 
nity or  a  lowering  of  professional  standing,  then  it 
is  proper;  when  it  cannot,  then  there  should  be  no 
solicitation.  This  is  about  all  that  can  be  said  upon 
the  subject  with  any  degree  of  certainty,  and  the 
circumstances  of  the  particular  case  must  determine 
the  conduct  of  the  attorney. 

89.  In  the  foregoing  paragraph  the  subject  of 
solicitation  has  been  considered  from  the  point  of 
view  of  the  respectable  practitioner  who  hesitates 
between  self-interest  and  professional  decorum; 
who  seeks  practice  but  is  yet  observant  of  the  pro- 
prieties. There  are,  however,  some  very  objection- 
able features  of  solicitation  to  be  seen  in  the  cities, 
where  a  horde  of  so-called  lawyers  find  a  regular 
and  profitable  employment  in  following  accidents 
and  soliciting  retainers  from  the  injured.  This  is 
solicitation  in  its  most  degrading  form,  and  a  vile 
prostitution  of  the  advocate's  calling.  Yet  the  "am- 
bulance chaser"  has  become  a  recognized  feature  of 


PROMOTION    AND    PUBLICITY.  57 

city  life.  He  haunts  the  hospitals  and  visits  the 
homes  of  the  afflicted,  officiously  intruding  his  pres- 
ence and  persistently  offering  his  services  on  the 
basis  of  a  contingent  fee.  This  is  not  law  practice  ; 
it  is  simply  a  form  of  legalized  piracy.  No  man  can 
adopt  such  a  course  and  yet  retain  the  respect  of  his 
professional  brethren,  for  while  the  person  so  doing 
violates  no  rule  of  law  he  is  guilty  of  a  gross  infrac- 
tion of  one  of  the  best-known  and  longest-estab- 
lished ethical  precepts  of  the  bar.  Unfortunately, 
this  is  a  practice  that  cannot  be  stopped  by  legal 
methods.  The  recourse  is  to  the  moral  sense  of  the 
bar ;  if  this  sense  is  weak  no  relief  may  be  expected, 
and,  so  long  as  complacent  juries  shall  freely  give 
away  other  people's  money  and  this  class  of  practi- 
tioners continues  to  receive  the  favorable  considera- 
tion of  bench  and  bar,  so  long  will  the  practice  itself 
continue. 

90.  Advertising.  In  a  small  community, 
where  the  local  attorneys  are  known  to  all  or  the 
larger  portion  of  the  people  and  their  respective 
abilities  are  matters  of  common  notoriety,  there 
exists  no  necessity  for  an  attorney  to  advertise  his 
business  through  any  other  than  the  legitimate  me- 
dium of  ordinary  practice.  But  in  large  cities  and 
centers  of  population,  where  both  business  and  so- 
cial acquaintance  is  limited,  it  seems  almost  a  matter 
of  absolute  necessity  for  the  young  advocate  to 
reach  the  public  through  some  of  the  methods  that 
may  properly  be  denominated  "advertising." 


58  ESSAYS    IN   LEGAL   ETHICS. 

91.  Now  it  is  well  settled  that  every  man  has  a 
right  to  choose  his  own  occupation  in  life,  subject 
only  to  the  restraint  necessary  to  secure  the  com- 
mon welfare.  This  is  one  of  the  privileges  of  cit- 
izenship.^^ He  not  only  has  a  right  to  choose  his 
occupation,  but  the  further  right  to  pursue  and 
carry  on  the  business  of  such  occupation  in  any  way 
and  by  any  methods  that  are  lawful  and  proper.  As 
has  been  well  said,  in  these  days  of  commercial  en- 
terprise, advertising  is  an  important  factor  in  busi- 
ness pursuits,  and  therefore  every  man  has  a  right 
to  advertise  his  business  in  any  legitimate  manner 
so  as  to  attract  the  attention  of  the  public.^^ 

92  But  the  ethics  of  the  legal  profession  forbid 
that  an  attorney  should  advertise  his  talents  or  his 
skill  as  a  shopkeeper  advertises  his  wares,^^  and 
public  policy  is  distinctly  opposed  to  any  efforts 
that  may  tend  to  invite  or  encourage  litigation.  To 
what  extent,  then,  may  an  attorney  present  himself 
for  public  consideration,  and  how  far  may  he  pro- 
ceed without  infracting  any  of  the  rules  which  the 
force  of  long  and  well-settled  public  opinion  has  es- 
tablished for  the  regulation  of  this  branch  of  pro- 
fessional conduct?  The  solution  of  this  question  is 
far  from  easy.  Modern  methods  of  transacting 
business  have  materially  changed  the  ancient  formu- 

58  Forer  v.  People,  141  111.  171 ;  Commonwealth  v.  Perry, 
155  Mass.  117;  People  v.  Gillson,  109  N.  Y.  389. 

59  Ruhstrat  v.  People,  185  111.  I33- 
00  People  V.  MacCabe,  18  Col.  186, 


PROMOTION    AND    PUBLICITY.  59 

las  of  the  commercial  world,  and  these  changes  have 
not  been  without  effect  in  legal  circles.  Much  as 
we  may  deplore  the  fact  it  would  yet  seem  that  the 
leaven  of  commercial  influence  is  actively  at  work  in 
the  legal  profession,  and  the  result  has  been  to 
create  wide  departures  from  former  standards,  even 
in  the  matter  of  advertising. 

93.  Cards.  From  time  immemorial,  as  we 
reckon  time  from  the  professional  standpoint,  the 
only  method  of  announcement  sanctioned  by  our 
unwritten  code  of  ethics  is  the  modest  "card,"  and 
this,  if  we  shall  consult  only  the  best  usage,  should 
bear  upon  it  nothing  more  than  the  name,  occupa- 
tion and  business  address  of  the  individual  or  firm 
by  whom  it  Is  issued,  displayed  in  inconspicuous 
characters.  This  slender  bit  of  pasteboard  has 
long  been  considered  fully  adequate  for  all  profes- 
sional needs,  and  for  many  years  no  other  or  dif- 
ferent medium  has  been  deemed  necessary  to  enable 
the  attorney  to  reach  the  public.  If  perchance  the 
practitioner  has  felt  the  necessity  of  a  wider  dis- 
semination of  his  name  and  occupation  than  was 
afforded  by  his  own  efforts,  he  has  been  permitted 
to  reproduce  his  card  in  the  advertising  columns  of 
magazines  and  newspapers  of  high  standing.  But 
this  was  the  limit  of  the  advertising  methods  per- 
mitted by  the  ''old  school,"  and,  in  the  opinion  of 
the  majority  of  the  legal  practitioners  of  today,  to 
transcend  this  limit  is  to  violate  a  fundamental  rule 
of  the  code. 


6o  ESSAYS   IN   LEGAL   ETHICS. 

94.  It  certainly  must  be  admitted,  that  a  plain 
and  modestly  lettered  card  carries  with  it  a  certain 
dignity  that  is  wholly  lost  whenever  an  ostentatious 
display  is  attempted,  and  as  the  object  of  all  adver- 
tising is  to  interest  the  public  in  the  advertiser  or  his 
wares,  then,  as  a  matter  of  good  business  policy, 
that  method  should  be  pursued  which  is  most  likely 
to  attain  such  end.  The  legal  advertiser  does  not 
offer  a  marketable  commodity,  the  merits  of  which 
he  may  with  propriety  vaunt.  He  offers  himself — 
his  talent  and  his  skill.  It  ill  becomes  him,  then, 
to  sound  his  own  praise,  even  though  it  be  done  in- 
directly by  a  recital  of  the  things  he  is  able  to  ac- 
complish. 

95.  It  is  enough,  therefore,  simply  to  announce 
the  fact  of  professional  character  and  the  place  where 
clients  may  attend.  This  latter  should  always  be  the 
attorney's  office.  There  are  certain  classes  of  prac- 
titioners who  also  state  their  place  of  residence, 
and,  impliedly  at  least,  invite  clients  to  consult  them 
there.  As  a  general  proposition,  however,  these 
classes  do  not  represent  the  better  elements  of  the 
profession,  and  while  an  attorney  may  receive  his 
clients  at  his  home  the  prevailing  sentiment  of  the 
bar  is  distinctly  opposed  to  such  a  practice.  For 
this  reason  the  placing  of  a  residence  address  on  a 
professional  card  is  always  regarded  as  bad  form. 

96.  Attorneys  pursuing  a  special  branch  of  the 
law  may  also  announce  their  specialty,  yet  such  an- 
nouncement should  be  made  in  the  same  dignified 


PROMOTION    AND    PUBLICITY.  6l 

manner.  Probably  the  widest  departures  from  good 
taste  occur  in  this  form  of  advertising.  In  these 
modern  days  of  commercial  activity  too  many  at- 
torneys become  impressed  with  the  idea  that  to  suc- 
ceed at  the  bar  the  practitioner  must  be  a  "hustler," 
and  it  is  through  the  precept  and  example  of  this 
class  that  law  is  so  frequently  degraded  from  its 
true  character  as  a  learned  and  liberal  profession  and 
made  to  assume  the  features  of  a  mean,  sordid, 
and  grasping  trade. 

97.  Newspaper  advertising.  As  stated  in 
the  last  section,  an  attorney  may,  without  violating 
any  of  the  proprieties,  insert  his  card  in  periodical 
publications  of  standing  and  repute.  The  village 
newspaper  is  a  conspicuous  illustration  of  the  man- 
ner in  which  this  can  be  done  with  no  diminution 
of  professional  dignity.  Law  journals,  and  period- 
icals devoted  to  legal  and  financial  interests,  are  now 
regarded  as  proper  media  whereby  to  reach  the  pub- 
lic. High-class  literary  magazines  occasionally  in- 
sert a  column  of  professional  cards,  and  this  form 
of  advertisement  is  probably  unobjectionable  at  the 
present  time.  But  this  practically  completes  the  list. 
The  trade  journal,  the  flashy  or  sensational  weekly, 
the  nondescript  purveyor  of  cheap  fiction,  and  the 
ephemeral  advertising  sheet,  are  all  to  be  avoided. 
No  self-respecting  lawyer  will  ever  permit  himself 
to  be  represented  in  the  columns  of  this  class  of 
journals,  and  no  one  can  be  so  represented  without 
losing  caste  as  a  practitioner. 


62  ESSAYS    IN    LEGAL   ETHICS. 

98.  The  daily  newspaper  of  the  cities  is  equally 
objectionable.  The  character  of  the  paper  itself  is 
immaterial;  it  is  the  fact  of  advertising  and  the 
company  in  which  the  advertiser  is  found  that  is 
condemned.  What  shall  we  think,  what  can  we 
think,  of  the  attorney  who  plaintively  appeals  for 
public  recognition  with  a  medical  quack  on  one  side 
and  a  humbug  clairvoyant  on  the  other?  Of  the 
three,  the  seventh  son  of  a  seventh  son  most  com- 
mands our  respect,  for  he,  at  least,  impliedly  ad- 
mits that  he  is  a  fraud,  while  the  others  attempt  to 
screen  themselves  under  the  mantles  of  the  learned 
professions. 

99.  Anonymous  announcements.  The  daily 
papers  of  our  large  cities  constantly  present  anon- 
ymous announcements  in  which  the  undisclosed  ad- 
vertiser offers  his  services  to  the  public  as  a  legal 
practitioner  either  in  a  general  way  or,  as  is  more 
frequently  the  case,  as  an  expert  in  some  special 
line.  These  announcements  are  sometimes  signed 
with  the  name  of  an  actual  or  fictitious  corporation, 
but  the  usual  plan  is  to  invite  correspondence  by 
prospective  litigants  directed  to  a  post  office  box. 
Now  it  cannot  be  denied  that  a  lawyer,  in  the  exer- 
cise of  his  own  judgment,  may  make  any  of  the 
branches  of  the  law  a  specialty,  and  may  invite  the 
general  public  to  test  his  ability  in  the  line  he  has 
so  chosen.  But  he  must  not,  in  so  doing,  use  un- 
dignified means  nor  resort  to  low  artifices,  and,  least 
of  all,  should  not  withhold  his  name  from  his  ad- 


PROMOTION    AND    PUBLICITY.  63 

vertisements.'^^  The  very  fact  that  such  advertise- 
ment is  without  signature  indicates  that  the  con- 
cealed advertiser  feels  a  sense  of  shame  in  its  pub- 
lication, and  no  honorable  practitioner  will  ever 
stoop  so  low  as  to  commit  an  act  that  he  will  feel 
ashamed  to  own. 

100.  Continued — Divorces.  By  far  the  larger 
portion  of  the  species  of  advertising  mentioned  in 
the  foregoing  paragraph  have  for  their  object  the 
solicitation  of  suits  for  divorce.  Now  the  procuring 
of  divorces  is  a  legitimate  branch  of  legal  practice, 
and  the  law  has  made  special  provision  for  such 
separations.  As  before  remarked,  a  lawyer  has  an 
undoubted  right  to  pursue  any  branch  of  the  law  as 
a  specialty,  and,  while  we  might  question  the  taste 
of  one  who  selects  so  unsavory  a  line  for  special 
work,  there  is  no  legal  and  possibly  no  ethical  objec- 
tion that  can  be  urged  against  his  adopting  pro- 
ceedings for  divorce.  But  for  any  one  to  invite  or 
encourage  such  litigation  is  most  reprehensible,^^ 
and  while  any  advertisement  having  this  end  in 
view  is  to  be  condemned,  as  contrary  to  the  ethics 
of  the  bar,  it  follows,  with  stronger  reason,  that  one 
who  thus  advertises  by  anonymous  announcements 
has  so  far  lowered  the  dignity  of  his  calling  as  to 
merit  the  severe  animadversion  of  his  professional 
brethren  and  an  application  of  the  disciplinary 
powers  of  the  court  whose  privileges  he  has  abused. 

•51  People  V.  Goodrich,  79  111.  148. 
62  People  V.  MacCabe,  18  Colo.  186, 


64  ESSAYS   IN   LEGAL   ETHICS. 

1 01.  The  marriage  relation,  in  law  as  in  morals, 
has  always  been  considered  sacred,  and  it  affects  too 
deeply  the  happiness  of  the  family,  as  also  the  wel- 
fare of  society,  and  lies  too  near  the  foundation  of 
all  good  government,  to  be  disturbed  or  sundered 
for  slight  or  transient  causes.  Therefore,  the  law 
has  defined  with  certainty  the  only  causes  for  which 
a  judicial  separation  will  be  permitted  and  the  meth- 
ods that  must  be  pursued  to  effect  same.  Neither 
judges  nor  lawyers  may  change  this  procedure.  And 
yet,  it  is  by  no  means  uncommon  to  meet  with  ad- 
vertisements to  the  effect  that  divorces  may  be  ob- 
tained, through  the  medium  of  the  advertiser, 
"quietly,"  "without  publicity,"  "good  everywhere," 
etc.,  and,  to  make  the  matter  worse,  the  identity  of 
such  advertiser  is  frequently  concealed  behind  a 
fictitious  name  or  a  postoffice  box.  Such  an  adver- 
tisement is  not  only  objectionable  from  a  moral 
point  of  view  but  is  distinctly  a  false  representa- 
tion of  facts  and  a  libel  on  courts  of  justice. 

102.  It  is  a  matter  of  common  knowledge  that 
divorces  cannot  be  legally  obtained  anywhere  "with- 
out publicity,"  nor  even  "quietly,"  for  in  every  in- 
stance a  public  record  must  be  made  and  a  public 
hearing  had  before  a  decree  can  be  entered.  All 
of  these  public  proceedings  the  statute  imperatively 
requires,  and  for  a  lawyer,  by  an  advertisement  or 
otherwise,  to  indicate  that  such  public  proceedings 
can  or  will  be  dispensed  with  by  the  courts  having 
jurisdiction  of  such  cases,  is  a  libel  on  the  integrity 


PROMOTION    AND    PUBLICITY.  65 

of  the  judiciary  that  courts  cannot  overlook  when 
same  is  brought  to  their  notice.^^ 

103.     A  person  enjoying  the  rights  and    priv- 
ileges of  an  attorney  must  also  respect  the  duties 
and  obligations  of  his  position.     His  license  was 
granted  on  the  express  promise  that  he  would  at  all 
times  demean  himself  in  a  proper  manner,  and  with 
the  implied  agreement  that  even  though  he  should 
not,  by  his  professional  conduct,  reflect  honor  upon 
the  court  appointing  him,  he  would  at  least  refrain 
from  such  practices  as  could  not  fail  to  bring  dis- 
grace upon  such  court,  the  bar,  and  himself.^^    The 
public  and  every  individual  coming  in  contact  with 
liim  in  his  professional  capacity,  have  a  right  to  ex- 
pect that  he  will  act  with  the  scrupulous  propriety 
that  should  ever  characterize  one  commissioned  to 
so  high  and  honorable  an  office,  and  when  it  shall 
appear  that  he  has  abused,  or  perverted  to  im- 
proper uses,  the  Hcense  he  has  received,  it  is  the 
duty  of  both  the  bar  and  the  courts  to  purge  them- 
selves of  the  unclean  member. 

104.  Continued — Bad  debts.  Another  form 
of  highly  objectionable  advertisement  is  that  of  the 
''wages"  and  "bad  debts"  collector.  This  method  of 
solicitation  is  usually  made  under  the  guise  of  a 
"bureau,"  "agency,"  "association,"  etc.,  and,  to  this 
extent,  partakes  of  the  character  of  anonymous  an- 

63  People  V.  MacCabe,  18  Colo.  186. 

''^  People  V.  Goodrich,  79  111.  148;  People  v.  Brown,  17 
Colo.  431. 


66  ESSAYS    IN   LEGAL   ETHICS. 

nouncements.  As  a  rule,  the  bait  of  "no  fee  unless 
successful"  is  held  out  to  catch  the  economically 
disposed  public,  while  not  infrequently,  where  the 
statute  permits  the  recovery  of  attorney  fees  by  the 
prevailing  party,  the  services  of  the  "bureau"  are 
offered  free  of  charge. 

105.  This  form  of  advertisement  is  quite  as 
much  to  be  condemned  as  the  one  discussed  in  the 
last  section,  in  so  far  as  it  tends  to  lower  the  dignity 
and  importance  of  the  legal  profession.  It  is  open 
further  to  the  still  weightier  objection  that  it  is  a 
proposal  for  litigation  that  practically  amounts  to 
common  barratry.  The  policy  of  the  law  distinctly 
discourages  the  inciting  or  stirring  up  of  quarrels 
and  suits,  and  it  is  the  vile  brood  of  generators  of 
petty  strife  and  fomenters  of  neighborhood  quar- 
rels that  has  tended  to  bring  the  profession  of  law 
into  disrepute. 

106.  It  is  not  contended  that  the  collection  of 
claims,  so-called,  is  not  a  proper  subject  for  an  at- 
torney's work.  Indeed,  "collections"  are  usually 
resorted  toby  the  young  attorney  as  a  stepping- 
stone  to  other  and  more  lucrative  forms  of  profes- 
sional employment.  And  usually,  also,  the  collec- 
tions then  obtained  are  of  the  sort  to  which  the 
term  "bad"  may,  with  great  propriety,  be  applied. 
The  offense  is  not  the  undertaking  to  collect  claims 
but  the  proposal  for  litigation  and  the  indecent  man- 
ner in  which  such  proposal  is  made. 

107.  Newspaper   discussions.     An    attorney 


PROMOTION    AND    PUBLICITY.  67 

has  the  same  right  as  every  other  man  to  air  his 
views  upon  any  subject  in  the  public  press.  Nor  is 
he  confined  to  matters  external  to  his  profession, 
and  it  is  immaterial  that  the  publication  of  such 
views  may  tend  to  exalt  his  professional  reputation 
or  bring  him  clients.  This  may  be,  and  indeed  is,  a 
form  of  advertising,  but  it  is  nevertheless  a  legit- 
imate one  if  properly  effected.  There  was  a  time  in 
the  not  far  distant  past  when  discussion  of  legal 
subjects  by  lawyers,  in  other  than  accredited  law 
journals,  was  regarded  with  much  disfavor,  and  it 
is  still  regarded  as  bad  form  for  a  lawyer  to  com- 
pile a  legal  work  for  popular  reading.  But  the  po- 
sition and  province  of  the  lawyer  has  been  material- 
ly broadened  in  recent  years.  He  has  become,  in 
many  respects,  a  leader  of  popular  thought;  his 
views  upon  all  great  questions  of  the  hour  are  eager- 
ly sought  and  received  with  deferential  respect,  and 
he  is  daily  becoming  more  and  more  a  power  in  so- 
ciety and  civil  life.  The  press  is  the  most  effective 
agency  by  which  the  public  mind  may  be  reached 
and  influenced,  and  it  has  now  come  to  be  consid- 
ered a  proper  channel  through  which  to  transmit 
professional  views. 

108.  There  is,  however,  a  form  of  newspaper 
publication  that  the  ethics  of  the  bar  sternly  forbids, 
and  this  is  where  an  attorney  seeks  to  influence  the 
public  with  respect  to  pending  or  anticipated  litiga- 
tion in  which  he  has  a  direct  personal  or  profession- 
al interest.    The  effect  of  such  publication  is  to  pre- 


68  ESSAYS    IN    LEGAL   ETHICS. 

vent  a  fair  trial  and  otherwise  to  prejudice  the  due 
administration  of  justice,  and  the  attorney  who  re- 
sorts to  such  methods  must  inevitably  lose  standing 
in  the  profession. 

109.  Letters  and  circulars.  For  a  great 
many  years  it  has  been  customary  for  lawyers  to 
give  notice  of  changes  in  the  personnel  of  firms,  re- 
movals, etc.,  by  a  simple  announcement  of  the  fact 
through  the  mails.  While  these  announcements 
are  usually  intended  as  advertisements,  and  such  is 
always  their  effect,  yet  their  primary  and  ostensible 
purpose  is  merely  to  communicate  a  business  fact  to 
the  public.  This  has  always  been  regarded  as  a  le- 
gitimate method  of  attaining  publicity,  and  is  fully 
sanctioned  by  long  and  unquestioned  usage.  A 
printed  circular  is  generally  employed  for  this  pur- 
pose. The  statements  should  be  brief,  severely  con- 
cise, and  modestly  displayed.  To  depart  from  this 
standard  is  considered  an  exhibition  of  bad  taste  on 
the  part  of  the  advertiser. 

no.  This  is  about  as  far  as  a  reputable  practi- 
tioner may  proceed  in  the  way  of  circular  advertis- 
ing, and  when  an  attorney  transcends  this  limit, 
either  by  extolling  his  own  abilities,  his  connections, 
or  his  facilities  for  transacting  business,  he  ap- 
proaches dangerously  near  the  line  that  separates 
the  lawyer  from  the  shyster  and  pettifogger.*'^ 

•55  The  term  "shyster"  seems  to  be  an  American  colloquial- 
ism of  unknown  origin.  It  is  defined  by  Webster  as  a  "trick- 
ish  knave;  one  who  carries  on  any  business,  especially  the 


PROMOTION    AND    PUBLICITY.  69 

III.  The  unsolicited  offer  of  professional  as- 
sistance sent  to  a  stranger  is  distinctly  a  type  of 
shystering  practice.  In  the  cities  we  often  find  men, 
who,  by  reason  of  laxity  in  the  requirements  of  ad- 
mission to  the  bar,  have  been  permitted  to  assume 
the  office  and  enjoy  the  privileges  of  advocates  with 
no  adequate  ideas  of  the  dignity  and  importance  of 
the  legal  profession.  It  is  a  cardinal  rule  with  these 
men  that  a  successful  lawyer  must  "hustle  for  busi- 
ness," and  by  this  is  meant,  in  effect,  a  total  disre- 
gard of  all  conventional  rules  and  observances.  The 
business  community  is  overwhelmed  with  circulars, 
letters  and  other  advertising  devices;  court  records 

legal  business,  in  a  dishonest  way."  A  "pettifogger"  is  de- 
fined by  the  same  authority,  as  "a  lawyer  who  deals  in  petty 
cases;  an  inferior  attorney  employed  in  mean  professional 
business." 

Mr.  R.  L.  Harmon,  addressing  the  Ala.  Bar  Assn.  in  1897, 
makes  the  following  distinctions  and  definitions :  "The  petti- 
fogger, as  a  lawyer,  is  an  unlearned,  little,  mean  character, 
lacking  in  ability,  sound  judgment  or  good  common  sense, 
while  the  shyster  may  be  possessed  of  much  learning,  great 
ability  or  an  abundance  of  shrewdness  and  cunning,  but  he 
is  a  trickster  and  a  dishonest  schemer ;  he  is  a  fomenter  of 
litigation,  strife  and  discord  in  the  community;  he  is  a  manu- 
facturer of  evidence,  a  fosterer  of  perjury  and  a  promoter  of 
bribery;  he  is  a  cunning  thief,  who  conceals  his  perfidy  and 
rascality  under  the  cloak  of  the  law  ;  he  cunningly  abuses  the 
noble  profession  to  which  he  has  been  admitted  as  a  weapon 
of  offense  in  deeds  of  unjust  oppression,  scheming  knavery 
and  the  procurement  of  confidence  and  the  repose  of  trust, 
which  he  basely  abuses,  when  there  is  opportunity  to  profit  by 
so  doing." 


yo  ESSAYS    IN    LEGAL   ETHICS. 

are  searched  for  suits  commenced,  and  defendants 
are  written  to  with  offers  of  assistance ;  prospective 
Htigation  is  discovered  and  fomented;  impertinent 
inquiries  are  directed  to  individuals  as  to  whether 
they  are  satisfied  with  their  present  counsel,  etc., 
and  invitations  are  extended  to  call  on  the  adver- 
tiser and  inspect  his  wares.  This  is  shystering,  pure 
and  simple,  and  it  makes  no  difference  that  the  ad- 
vertiser occupies  spacious  and  finely  appointed  of- 
fices with  a  retinue  of  clerks  and  assistants. 

112.  Self  praise.  It  remains  to  speak  of  one 
other  form  of  advertisement  which  our  ethical 
canons  have  long  condemned.  Notwithstanding  the 
attorney  has  been  observant  of  the  formal  proprie- 
ties, he  may  yet  be  an  offender  against  good  taste 
by  simply  talking  about  himself  and  his  own  foren- 
sic achievements.  It  is  said  that  no  man  of  fine  sen- 
sibilities will  ever  stoop  to  "blow  his  own  horn,"  but 
must  allow  his  praises  to  be  sounded  by  others. 
With  respect  to  the  general  truth  of  this  proposi- 
tion, there  is  no  room  for  argument,  and  while  the 
boaster  may  at  times  derive  a  profit  from  the  recital 
of  his  own  exploits,  particularly  with  the  simple 
and  credulous,  yet  in  the  main  their  effect  is  only  to 
excite  aversion  and  disgust. 

113.  But  while  it  is  well  to  be  "advertised  by 
our  loving  friends,"  suppose  they  refuse  to  perform 
this  office  ?  What  then  ?  Now,  it  is  not  considered 
bad  taste  on  the  part  of  a  scientist  to  relate  his  own 
discoveries  nor  to  dilate  on  their  value,  while  every 


PROMOTION    AND    PUBLICITY.  71 

soldier  is  permitted  to  fight  his  battles  over  again 
for  the  benefit  of  his  auditors.  Then  why  may  not 
the  lawyer  refer  to  his  own  experience,  his  struggles 
and  his  triumphs?  There  is  no  good  reason  why 
one  should  be  permitted  and  the  other  prohibited. 

1 14.  The  difficulty  lies  in  the  manner  of  the  tell- 
ing rather  than  in  the  thing  told;  but  if  time,  and 
place,  and  circumstances,  all  invite  it,  there  would 
seem  to  be  no  well-founded  ethical  objection  to  the 
lawyer's  recital  of  the  things  he  has  accomplished, 
notwithstanding  that,  in  effect,  he  is  advertising 
himself  out  of  his  own  mouth.  But  in  this,  as  in 
every  other  form  of  promotion  and  publicity,  a  due 
regard  for  the  proprieties  must  ever  be  observed,  for 
in  no  other  profession  does  the  maxim  that  "Mod- 
esty bespeaks  merit,"  so  well  apply. 


CHAPTER  V. 

COMPENSATION. 

Principles  governing  the  right  of  compensation — Theory  of 
compensation  in  England  and  America — Gratuitous  ser- 
vice— Special  agreements — Extent  of  compensation — 
Considerations  affecting  the  extent  of  compensation — 
Contingent  fees — Right  of  compensation  of  assigned 
counsel  of  poor  person. 

115.  The  right  of  compensation.  In  one  of 
the  oldest  and  most  respected  of  ethical  codes  may 
be  found  the  precept,  "The  laborer  is  worthy  of  his 
hire,"  and  this  precept  never  seems  to  have  been  se- 
riously questioned  save  in  the  case  of  certain  of  the 
professions.  Now,  there  can  be  no  question  with 
respect  to  the  ethical  truth  of  the  precept.  It  coin- 
cides with  our  ideas  of  abstract  justice.  If  one  man 
renders  valuable  service  to  another,  at  the  request 
of  the  latter,  the  person  so  serving  should  be  suit- 
ably compensated.  In  case  such  compensation  is 
withheld  the  servant  should  have  a  right  to  enforce 
payment  by  the  power  of  the  state.  This  principle 
the  law  fully  recognizes,  and  has  recognized  from 
a  very  early  period,  yet,  strange  as  it  may  appear, 
the  right  of  an  attorney  to  demand  and  sue  for  fees 
has  been  questioned  in  American  courts  during 
comparatively  recent  years. 

116.  The  reason  for  this  must  be  sought  in  the 

72 


COMPENSATION.  73 

peculiar  character  of  the  advocate's  calling.  It 
would  seem  that  from  the  very  earliest  times,  and 
in  every  country  where  advocacy  has  been  known, 
it  has  been  the  custom  to  regard  the  services  of  the 
advocate  as  a  gratuity.  It  is  true  that  he  has  always 
been  remunerated  in  some  way,  but  the  reward 
which  the  client  bestowed  was  viewed  in  the  light  of 
an  honorarium — a  pure  gift  in  token  of  gratitude — 
and  not  as  the  discharge  of  a  legal  obligation.  It 
is  said  that  this  idea  was  maintained  from  a  jealous 
apprehension  lest  the  profession  should  degenerate 
into  a  mere  mercenary  trade,^^  but  in  its  inception 
the  theory  of  gratuitous  service  seems  to  have  been 
based  on  higher  and  more  chivalric  grounds. 

117.  In  the  earliest  forms  of  advocacy,  where 
one  appeared  in  a  court  to  plead  the  cause  of  an- 
other, it  was  usually  nothing  more  than  a  neighbor- 
ly service,  and  for  such  intercession  on  behalf  of  a 
friend  and  neighbor  no  pecuniary  reward  was  ex- 
pected. Such  service  was  substantially  a  help  af- 
forded by  the  strong  to  the  weak,  prompted  by  sen- 
timents of  pity  or  affection  for  one  in  distress.  It 
would  seem  also,  that  the  early  advocates,  in  many 
instances,  were  clerics — priests  or  persons  in  holy 
orders — and  their  services  were  given  without 
charge  as  a  pious  duty. 

118.  The  English  theory.  When  advocacy 
first  became  established  as  an  exclusive  profession, 
it  was  invested  with  a  dignity  which  fell  but  little 

«®  Forsyth,  Hortensius  the  Advocate,  Ch.  IX. 


74  ESSAYS   IN   LEGAL   ETHICS. 

short  of  that  bestowed  upon  the  judges.  The  bar- 
rister became  an  integral  part  of  the  court.  He 
pursued  his  calHng  not  for  gain,  but  for  the  honor 
which  it  brought.  The  old  custom  of  gifts  to  ad- 
vocates was  then  in  vogue,  and  while  he  might  not 
take  money  as  a  payment  for  his  services  he  might 
accept  same  as  an  honorarium,  and  so  the  custom 
continued  under  the  new  order  of  things.  The  prac- 
tice thus  inaugurated  was  never  abandoned,  and 
still  obtains  at  the  English  bar,  although  for  many 
years  it  has  been  a  transparent  fiction.  In  theory 
the  English  barrister  exacts  no  fee  but  does  expect 
his  honorarium,  "being  indeed  a  gift  which  giveth 
honor  as  well  to  the  taker  as  to  the  giver."^'^  The 
English  attorney,  on  the  other  hand,  always  seems 
to  have  charged  for  his  services,  and  at  present 
there  is  a  graduated  scale,  fixed  by  law,  for  certain 
kinds  of  legal  employment. 

119.  The  American  THEORY.  While  the  gen- 
eral principles  of  advocacy  are  the  same  in  Eng- 
land and  the  United  States,  there  are  yet  some  strik- 
ing minor  differences.  These  differences,  to  some 
extent,  grow  out  of  the  fact  that  in  this  country  the 
functions  of  attorney  and  counselor  are  united  and 
the  duties  of  the  dual  office  are  performed  by  the 
same  person.  But  a  more  cogent  reason  may  be 
found  in  the  changed  conditions  of  the  American 
people  and  the  position  in  which  advocacy  has 
thereby  been  placed.     That  the  trained  advocate  is 

67  Sir  John  Davy,  Preface  to  Reports. 


COMPENSATION.  75 

a  necessity  in  the  administration  of  justice  is  now 
conceded.  This  trained  class  cannot  be  produced 
unless  a  proper  provision  is  made  for  the  mainte- 
nance of  its  members.  They  must  be  paid,  either 
by  the  state,  as  in  the  case  of  the  judges,  or  by  the 
litigants  who  avail  themselves  of  their  services. 
Their  contract  with  the  suitor  is  essentially  one  of 
employment,  and  hence,  for  whatever  service  they 
may  render,  the  law  implies  a  right  of  compensa- 
tion.^® 

1 20.  The  flimsy  pretext  of  an  honorarium  has 
a  nominal  existence  only  in  England.  In  this  coun- 
try it  is  unknown.  The  attorney,  in  every  case, 
may  demand  and  enforce  such  remuneration  as 
shall  compensate  him  for  the  time  and  labor 
actually  expended  and  in  fixing  the  amount  of  such 
remuneration  the  preliminary  preparation  for  the 
assumption  of  professional  duties  is  a  proper  factor. 
Without  this,  the  profession  of  advocacy  could  not 
be  maintained  in  this  country. 

121.  Nor  does  this  condition  in  any  way  mili- 
tate against  high  ideals  of  professional  indepen- 
dence, integrity,  or  moral  excellence.  Its  general 
acceptance  has  not  tended  to  lower  the  character 
or  impair  the  dignity  of  the  bar.  Advocacy  is  still 
an  honorable  profession,  notwithstanding  its  inci- 
dental abuses,  and  it  by  no  means  follows  that 
because  an  advocate  is  animated  by  a  hope  of  gain 
he  thereby  sacrifices  any  of  the  moral  principles  that 
prompt  to  action. 

^s  Cooper  V.  Hamilton,  52  111.  119. 


76  ESSAYS    IN    LEGAL    ETHICS. 

122.  The  attorney's  right  to  charge  and  recover 
compensation  for  his  professional  services  is  based 
upon  a  contract  of  employment,  which,  as  a  rule,  is 
initiated  by  a  formal  request  on  the  part  of  the 
client,  technically  called  a  "retainer."  But,  while 
this  is  the  usual  method  of  creating  the  relation  of 
attorney  and  client,  it  is  not  essential  to  the  right 
of  recovery  that  an  express  request  should  be 
shown.  The  contract  of  retainer  may  be  made  the 
same  as  any  other ;  that  is,  it  may  be  either  express 
or  implied,  and  when  an  attorney  renders  services 
under  such  circumstances  as  reasonably  imply  that 
they  were  performed  with  the  assent  and  at  the 
request  of  a  party,^^  or  where  a  party  by  his  acts 
induces  an  attorney  to  suppose  that  his  services  are 
desired,  and  avails  himself  of  them  without  objec- 
tion,''^'^ the  law  will  raise  a  promise  of  payment  on 
which  a  recovery  may  be  had. 

123.  Liability  for  fees.  As  a  general  rule, 
in  the  absence  of  a  special  agreement,  an  attorney 
must  look  to  the  person  employing  him  for  his  com- 
pensation for  services  rendered,  and  cannot  recover 
from  one  who  did  not  employ  him,  however  valu- 
able may  be  the  result  of  his  services  to  such  per- 
son.''^^  Thus,  if  a  number  are  interested  in  the 
subject-matter  of  the  employment  he  can  have 
recourse  only  against  those  who  actually  retained 

«»  Cooper  V.  Hamilton,  52  III.  119. 

^0  Ector  V.  Wiggins,  30  Tex.  55. 

■fi  Wailes  v.  Brown,  27  La.   Ann.  411. 


COMPENSATION.  ^y 

him.'^^  So,  too,  although  the  employer  is  a  trustee, 
and  the  services  are  rendered  for  the  benefit  of  the 
trust  estate,  yet  the  attorney  will  not,  in  virtue  of 
these  facts  merely,  acquire  any  claim  against  the 
estate/^  And,  if  an  agent,  through  a  false  repre- 
sentation of  his  authority,  secures  professional 
services  in  the  business  of  his  principal,  and  it  sub- 
sequently appears  the  agent  was  without  authority, 
the  attorney  must  rely  upon  the  agent  personally  for 
the  value  of  his  services/^ 

124.  Gratuitous  service.  Having  established 
the  fact,  as  a  legal  proposition,  that  a  lawyer  may 
demand  and  obtain  compensation  for  his  efforts  as 
an  advocate,  it  remains  to  inquire  to  what  extent, 
if  any,  he  may  be  expected  to  render  gratuitous 
service  in  a  worthy  cause.  We  have  no  authorized 
scale  of  charges,  as  is  the  case  with  certain  depart- 
ments of  legal  practice  in  England,  nor  are  there 
even  conventional  rules  for  the  government  and 
guidance  of  practitioners.  The  uniform  practice 
has  been  to  permit  counsel  to  make  his  own  esti- 
mates of  value.  One  man,  in  the  exercise  of  this 
privilege,  may  deem  his  services  worth  more  than 
another,  similarly  situated,  would  or  might  have 
charged,  and  generally,  unless  the  case  is  one  of 
flagrant  extortion,  no  ethical  question  is  raised. 
The  magnitude  and  importance  of  the  matters  in- 

^2  Cook  V.  Mackrell,  70  Pa.  St.  12. 
"Hallam  v.  Hallam,  2  Cin.   (Ohio)  384. 
''*  Wright  V.  Baldwin,  51  Mo.  269. 


78  ESSAYS   IN   LEGAL   ETHICS. 

volved,  the  time  and  labor  necessarily  required,  and 
the  circumstances  of  the  parties,  are  all  factors  in 
the  fixing  of  fees,  and,  except  in  cases  of  special 
assignment  by  the  court,  as  where  counsel  is 
assigned  to  defend  a  criminal,  no  lawyer  is  com- 
pelled to  accept  a  retainer  if  the  client  is  unable  or 
unwilling  to  pay  the  amount  which  he  names  as 
the  price  of  his  employment. 

125.  Yet,  the  poor  we  have  always  with  us. 
They  have  rights  to  be  established,  protected  and 
maintained,  and  the  only  persons,  as  a  rule,  who 
are  competent  for  this  purpose,  are  the  lawyers.  It 
will  often  happen  that  the  establishment  of  a  right 
will  bring  with  it  a  pecuniary  advantage  sufficient 
to  remunerate  counsel  for  his  services,  and,  in  such 
case,  a  contingent  fee  may  be  provided  for.  But 
often,  also,  the  right  is  of  such  a  nature  that  it 
possesses  no  pecuniary  features  and  its  establish- 
ment will  result  in  no  pecuniary  gain.  In  such 
event  may  counsel  refuse  his  aid?  It  would  seem 
that  he  may,  for,  whatever  may  have  been  the  early 
characteristics  of  advocacy,  he  is  under  no  other  or 
greater  obligations  to  society  than  the  artisan.  Nor 
will  a  refusal  affect  his  standing  at  the  bar. 

126.  But  we  should  regard  advocacy  as  some- 
thing higher  than  a  mere  means  of  livelihood,  and 
the  advocate  as  something  better  than  a  hired 
gladiator  who  fights  only  for  him  that  pays  the 
best.  Mercenary  and  calculating  men  may  have 
lowered  the  level  of  the  bar  from  the  old  chivalric 


COMPENSATION.  79 

Standard,  but  they  have  not  destroyed  the  standard 
itself,  and  the  cause  of  the  poor,  the  helpless  and 
the  oppressed,  remains  today  as  it  always  was. 

127.  Agreements  for  compensation.  Before 
an  attorney  undertakes  the  business  of  his  client  he 
may  properly  enter  into  a  contract  with  him  in 
regard  to  the  compensation  to  be  paid  for  the 
service,  as  no  confidential  relation  then  exists  and 
the  parties  deal  with  each  other  at  arms'  length.'^^ 
The  attorney  may  fix  the  terms  of  his  employment 
and  the  manner  in  which  his  service  shall  be  ren- 
dered, and  if  the  client  assents  thereto  the  contract 
is  not  distinguishable  from  other  contracts  relating 
to  personal  services  requiring  judgment  and  skill. 

128.  Where  an  agreement  exists  it  must  gener- 
ally be  taken  as  expressing  the  full  measure  of  the 
attorney's  compensation,  and  he  will  not  be  per- 
mitted to  raise  the  amount  therein  provided  during 
the  progress  of  the  suit  to  the  seeming  disadvantage 
of  the  client.'^®  It  is  a  familiar  dictum  that  the  law 
will  scrutinize  with  jealous  care  all  transactions 
betAveen  parties  who  stand  in  confidential  relations, 
and  Uiuler  this  principle  courts  on  several  occasions 
have  declared  that  an  agreement  made  by  a  client 
with  his  counsel,  after  the  latter  had  been  employed 
in  a  particular  business,  by  which  the  original  con- 
's Elmore  V,  Johnson,  143  111.  513;  Bingham  v.  Salene,  15 

Oreg.  208. 

reunited  States  v.  Coffin,  83  Fed.  Rep.  337;  Kisling  v. 
Shaw,  33  Cal.  425;  Ross  v.  Payson,  160  111.  349;  Burnham 
V.  Heselton,  82  Me.  495. 


8o  ESSAYS    IN   LEGAL   ETHICS. 

tract  is  varied  and  a  greater  compensation  is  se- 
cured to  counsel  than  may  have  been  agreed  upon 
when  he  was  retained,  is  void.''^ 

129,  Where  parties  enter  into  an  agreement  for 
compensation,  prior  to  the  engagement  of  counsel, 
it  is  customary  to  stipulate  for  a  sum  to  be  paid  in 
advance,  known  as  a  retaining  fee,  and  for  other 
sums  to  be  paid  as  the  work  progresses,  and  these 
sums  may  be  collected  according  to  the  terms  of 
the  agreement.  In  the  absence  of  an  express  stipu- 
lation, however,  even  though  there  be  an  agreement 
fixing  the  gross  sum  to  be  paid,  no  fees  can  be 
demanded  in  advance;  the  contract  is  regarded  as 
single  and  entire,  and  no  right  of  compensation 
accrues  until  the  services  are  fully  performed.'^^ 

130.  Extent  of  compensation.  Where  an 
attorney  has  entered  into  an  agreement  with  his 
client  in  respect  to  the  character  of  the  service  to 
be  rendered  and  the  compensation  to  be  paid  there- 
for, he  is  entitled,  on  performance  of  the  service, 
to  demand  and  receive  the  sum  so  stipulated  and 
agreed  upon.'^^  But  this  sum  will  constitute  the 
full  extent  of  his  compensation,  irrespective  of  the 
actual  value  to  the  client  of  the  service  rendered. 
It  is  only  in  exceptional  cases,  however,  that  agree- 
ments of  this  kind  are  made,  for  an  attorney  can 

''"^  Lecatt  V.  Sallee,  3  Port.  (Ala.)  115;  and  see,  Elmore  v. 
Johnson,  143  111.  513. 

78  Bathgate  v.  Haskin.  59  N.  Y.  533. 

f9  Schamp  v.  Schenck,  11  Vroom  (N.  J.)  195. 


COMPENSATION.  8l 

rarely  see  in  advance  the  direction  and  extent  of  the 
litigation  upon  which  he  is  entering,  and,  for  this 
reason,  it  is  seldom  that  a  fixed  sum  can  be  named 
that  will  be  just  and  fair  for  both  parties.  The 
general  custom,  therefore,  is  to  defer  the  ascertain- 
ment of  the  amount  of  the  attorney's  compensation 
until  the  termination  of  the  ligitation  or  the  par- 
ticular business  involved. 

131.  Where  the  amount  of  compensation  is  not 
fixed  by  any  contract  or  agreement  under  which 
the  attorney  is  employed,  he  is  entitled  to  demand, 
and  may  recover,  such  reasonable  fees,  under  an 
implied  contract,  as  his  services  may  have  been 
worth,  or  as  have  usually  been  paid  to  others  for 
similar  services. ^^  What  is  a  reasonable  fee  in  a 
given  case  is  a  question  of  fact,  to  be  determined, 
in  case  of  dispute,  by  the  weight  of  the  evidence.^^ 

132.  The  general  rule  of  quantum  meruit  is 
based  upon  a  market  price,  and  this,  in  the  case  of 
professional  services,  is  the  price  usually  charged 
for  similar  services.  But  the  rendering  of  profes- 
sional services  is  not  like  the  sale  of  commodities, 
where  the  price  at  which  an  article  sold  may  have 
a  tendency  to  fix  or  show  the  market  price,  nor  can 
the  amount  paid  in  a  particular  case  be  considered 
or  accepted  as  the  proper  amount  to  be  charged  in 
all  like  cases.    There  may  be  peculiar  circumstances 

8*>  Elmore  v.  Johnson,  143  111.  513;  Lecatt  v.  Sallee,  3  Port. 
(Ala.)    115;   Eggleston  v.  Boardman,  37  Mich.  14. 
81  Lamar  Ins.  Co.  v.  Pennell,  19  111.  App.  212. 


82        ESSAYS  IN  LEGAL  ETHICS. 

or  elements  that  assisted  in  fixing  the  amount  paid 
in  one  case,  which  would  not  exist  in  another,  and 
hence,  while  the  question  of  reasonable  worth  must 
be  determined  from  the  prices  usually  charged  for 
similar  services,  yet,  in  such  determination,  all  of 
the  attendant  facts  and  circumstances  must  be  con- 
sidered.^^ 

133.  The  strong  tendency  of  recent  decisions  is 
to  disregard  many  of  the  ancient  rules  which  were 
formerly  resorted  to,  and  to  announce  in  their  place 
the  better  and  more  sensible  doctrine,  that  no  regu- 
lar measure  of  value  can  be  fixed  for  services  of 
counsel  in  trying  difficult  cases  or  investigating  in- 
tricate questions  of  law. 

134.  The  result  of  the  litigation,  whether  suc- 
cessful or  otherwise,  may  have  some  effect  upon  the 
question  of  worth,  and  influence  the  fixing  of  the 
price  demanded,  but  an  attorney's  right  of  com- 
pensation is  not  lost  merely  because  his  services 
have  been  of  no  benefit  to  his  client,  if  they  have 
been  faithfully  and  intelligently  rendered.®^  Upon 
the  same  principle,  if  a  client  prevents  his  attorney 
from  completing  the  service  contracted  for  the 
right  of  compensation  is  not  lost,  and  the  attorney 
may  recover  as  though  he  had  fully  performed  it.** 

135.  Considerations  affecting  the  extent 
OF  compensation.     Pursuing  the  ideas  presented 


82  Eggleston  v.  Boardman,  37  Mich.  14. 

83  Bills  V.  Polk,  4  Lea  (Tenn.)  494. 

84  Kersey  v.  Garton,  -j-]  Mo.  645. 


COMPENSATION.  83 

in  the  last  section  it  may  be  said,  that  while  the 
usual  rule  of  quantum  meruit  applies  as  well  to 
services  rendered  by  attorneys  as  to  those  of  per- 
sons engaged  in  other  lines  of  business,  that  is,  that 
the  attorney  may  charge  and  recover  whatever  his 
services  were  reasonably  worth,  yet,  in  arriving  at 
a  standard  of  value,  much  difficulty  is  often  expe- 
rienced, while  the  measure  of  compensation  is 
largely  affected  by  circumstances  that  are  wholly 
lacking  in  the  ordinary  cases.  The  value  of  pro- 
fessional service  is  necessarily  determined  by  many 
considerations  besides  the  mere  time  noticeably 
employed  in  the  conduct  of  a  suit  or  other  legal 
proceeding,  nor  should  compensation  be  limited  to 
services  rendered  in  trials,  in  the  narrowest  tech- 
nical meaning  of  the  word.^^  The  importance  and 
results  of  the  case  are  prime  factors  in  the  adjust- 
ment of  fees,  for  these,  to  some  extent,  afford  a 
measure  of  the  skill,  care,  responsibility,  anxiety 
and  effort  demanded  of  and  borne  by  the  attorney, 
and  hence  should  not  be  disregarded  in  determining 
the  question  of  the  value  of  such  services.®^  The 
amount  involved  in  the  suit  is  material,  and  has 
much  to  do  with  the  value  of  the  service  as  well  as 
the  degree  of  responsibility  which  the  attorney  has 
assumed,*'^  while  the  learning  and  ability  of  counsel 

85  Louisville  etc.  R.  R.  Co.  v.  Reynolds,  118  Ind.  170. 
*8  Selover  v.   Bryant,  54  Minn.   434 ;   Eggleston  v.  Board- 
man,  37  Mich.  14. 
8'  Babbitt  v.  Bumpus,  73  Mich.  331. 


84        ESSAYS  IN  LEGAL  ETHICS. 

as  well  as  the  means  of  the  client,  are  all  elements 
to  be  considered.^* 

136.  Immoderate  compensation  —  o  v  e  r- 
CHARGE.  It  is  frequently  asserted  that  lawyers 
charge  and  recover  fees  vastly  in  excess  of  the  real 
worth  of  the  services  rendered  therefor.  Indeed, 
this  has  furnished  the  material  from  which  have 
been  manufactured  many  cheap  jokes  and  much 
alleged  satire.  The  idea  had  its  origin  in  an  inade- 
quate conception  of  the  value  of  legal  services, 
induced  by  the  superficial  views  which  the  laity 
generally  take  of  the  profession.  Even  though  we 
admit  that  grasping  and  sordid  tradesmen,  taking 
advantage  of  the  circumstances  and  situation  of 
the  parties,  seek  to,  and  do,  extort  unconscionable 
fees,  yet  such  occurrences  are  rare  and  much  of  the 
popular  clamor  is  wholly  unfounded  in  fact. 

137.  There  will  probably  be  no  question  upon 
the  proposition  that  an  attorney  who  conducts  liti- 
gation for  another,  in  the  absence  of  a  special  agree- 
ment respecting  compensation,  is  entitled  to  be 
reasonably  remunerated  for  his  time  and  labor.  But 
the  reasonableness  of  an  attorney's  charge  for 
services,  as  shown  in  the  last  paragraph,  must  be 
determined  by  many  things  other  than  the  mere 
time  and  labor  actually  expended.  An  attorney  is 
under  an  implied  duty  to  use  and  exercise  reason- 
able skill,  care,  discretion  and  judgment  in  the 
conduct  and  management  of  his  client's  cause;  he 

88  Halaska  v.  Cotzhausen,  52  Wis.  624. 


COMPENSATION.  85 

is  subject  to  violent  mental  strain;  he  necessarily 
assumes  a  degree  of  responsibility  commensurate 
with  the  magnitude  of  the  interests  involved  and  the 
hazard  of  the  litigation.  In  fixing  the  amount  of 
his  fee  these  matters  are  all  proper  elements,  and 
courts  have  held  that  the  care,  responsibility  and 
mental  anxiety,  necessarily  arising  in  a  proceeding 
of  any  importance,  are  not  so  imaginative  and 
shadowy  that  they  should  not  be  considered  in 
arriving  at  a  proper  sum  to  be  allowed  for  profes- 
sional compensation.*^ 

138.  The  client,  in  most  cases,  looks  only  at 
the  time  employed  in  the  trial  and  measures  values 
by  a  standard  of  visible  evidences,  and,  while  he 
frequently  makes  allowances  for  the  professional 
standing  of  his  counsel,  he  rarely  takes  into  account 
the  other  factors  of  the  service.  Hence,  it  will  often 
happen  that  the  attorney's  bill  is  denounced  as 
extortionate  and  unconscionable  when,  in  fact,  it  is 
below  the  sum  that  in  justice  and  fairness  should 
be  paid. 

139.  Retaining  compensation  from  funds 
COLLECTED.  An  attorney  may,  in  a  proper  case, 
deduct  from  funds  collected  by  him,  and  in  his 
hands,  such  sum  as  he  may  deem  adequate  for  the 
service  rendered,  and,  if  such  sum  shall  seem  just 
and  fair  under  all  the  circumstances,  he  will  be  per- 
mitted to  retain  same.    But  where  the  attorney  thus 

^^  Halaska  v.  Cotzhausen,  52  Wis.  624 ;  Vilas  v.  Downer, 
21  Vt.  419;  Stanton  v.  Embrey,  93  U.  S.  548. 


86  ESSAYS    IN   LEGAL   ETHICS. 

reimburses  himself,  notwithstanding  the  client  may 
have  assented  thereto  at  the  time,  if  the  transaction 
has  even  the  appearance  of  unfairness  it  will  be 
vacated  upon  application  of  the  client  seasonably 
made. 

140.  The  reason  for  this  is,  that  the  relation  of 
attorney  and  client  is  one  of  great  confidence,  and 
the  attorney,  by  reason  of  his  commanding  position, 
is  presumed  to  exert  a  strong  and  controlling  in- 
fluence over  the  client.  It  is  said,  this  influence 
may  be  employed  to  obtain  undue  advantages,  or 
even  gratuities,  and  hence,  the  law  will  often  declare 
transactions  between  them  void,  which,  between 
other  persons,  would  be  unobjectionable.  This  prin- 
ciple has  been  held  to  extend  to  settlements  of  the 
amount  of  fees,  and,  if  the  client  can  show  that  the 
sum  retained  is  larger  than  the  services  of  the  attor- 
ney were  reasonably  worth,  or  larger  than  agreed 
upon  if  there  was  an  express  contract,  then  the 
burden  is  cast  upon  the  attorney  of  showing  that 
the  sum  was  retained  by  virtue  of  his  client's  agree- 
ment and  consent,  given  under  circumstances  that 
made  it  fair  and  conscionable.^*^ 

141.  As      AFFECTED      BY      LOCAL      RULES      AND 

SCHEDULES  OF  CHARGES.  Sometimes  bar  associa- 
tions prescribe  rules  with  respect  to  the  compensa- 
tion to  be  charged  by  its  members  for  certain  kinds 
of  service  and  the  conditions  under  which  such 
service  shall  be  rendered.     As  bar  associations  do 

90  Balsbaugh  v.  Eraser,  19  Pa.  St.  95. 


COMPENSATION.  87 

not  enjoy  the  apparent  immunities  of  the  trade 
union,  it  is  not  unHkely  that  a  combination  of  this 
kind  would  fall  within  the  inhibition  of  the  anti- 
trust laws  of  many  of  the  states,  and,  in  such  event, 
legal  questions  of  considerable  perplexity  would  be 
presented.  We  will  not  stop  to  discuss  this  phase 
of  the  matter,  however,  nor  the  right  of  attorneys 
to  regulate  the  conduct  of  the  members  of  their  own 
order.  If  the  rules  in  fact  exist,  then  the  attorney 
is  under  a  moral  obligation  to  observe  same,  and  is 
justified  in  conforming  to  them  in  fixing  the  amount 
of  the  charges  which  the  client  is  to  pay.  But  the 
obligation  of  conformity  is  wholly  personal  with 
the  attorney.  In  the  absence  of  a  special  agreement, 
or  proof  that  the  client  employed  the  attorney  with 
knowledge  of  an  implied  assent  to  the  rules,  he  is 
not  bound  to  pay  for  the  service  according  to  the 
rates  that  may  have  been  fixed  by  the  schedule  of 
the  bar  association,  but  is  liable  only  for  what 
they  are  reasonably  worth.  As  between  the  mem- 
bers of  the  association  the  rules  would  be  binding, 
as  they  would  also  be  with  respect  to  others  who 
assent  to  them,  but,  in  the  absence  of  such  assent, 
the  right  to  recover  for  services  must  be  determined 
and  the  amount  of  such  recovery  ascertained,  by 
the  general  law  and  not  by  the  rules  of  the  bar.^^ 

142.     Contingent  fees.    It  has  now  become  a 
common  practice  to  accept  retainers  under  an  agree- 
ment that  no  fee  shall  be  charged  for  the  service 
rendered  except  in  the  event  of  a  successful  deter- 
81  Boylan  v.  Holt,  45  Miss.  277. 


88  ESSAYS    IN    LEGAL    ETHICS. 

mination  of  the  suit,  and  usually,  in  such  event,  a 
larger  compensation  is  to  be  paid  than  would  have 
been  charged  had  such  agreement  not  been  made. 
This  is  known  as  a  contingent  fee,  and  the  increased 
sum  that  is  recovered  in  the  event  of  success  is 
regarded  as  a  fair  offset  to  the  risk  of  loss  that 
would  have  resulted  in  the  event  of  failure.  In 
many  cases  it  is  a  further  element  of  the  contingent 
fee,  that  the  sum  so  to  be  recovered  in  the  event  of 
success  shall  be  a  part  or  arise  out  of  the  subject- 
matter  of  the  litigation. 

143.  But  the  legal  sanction  for  contingent  fees 
was  long  withheld,  and  not  a  few  of  the  conserva- 
tive element  of  the  bar  still  condemn  the  practice 
as  contrary  to  good  morals  and  the  ethics  of  the 
profession.  It  would  seem  that  in  England  con- 
tingent fees  are  held  to  be  within  the  inhibition  of 
the  statutes  of  champerty  and  maintenance,  and 
such,  at  one  time,  would  seem  to  have  been  the  view 
entertained  in  this  country.^^  The  early  cases  look 
upon  the  practice  as  a  virtual  purchase  of  a  law  suit, 
and  maintain  that,  as  a  sworn  officer  of  the  court, 
an  attorney  should  not  be  permitted  to  avail  him- 
self of  the  knowledge  he  acquires  in  his  professional 
character,  to  speculate  on  suits  pending  therein. 

144.  The  ancient  common-law  offenses  of 
champerty,  maintenance,  barratry,  etc.,  are  but  little 
regarded  in  this  country  at  the  present  time.  As  a 
rule  the  ancient  statutes  have  not  been  re-enacted, 

»2  Arden  v.  Patterson,  5  Johns,  ch.   (N.  Y.)  48. 


COMPENSATION.  89 

although,  in  some  states,  champerty  is  still  punish- 
able as  at  common  law  and  contracts  tainted  with 
it  are  void.  Where  the  common-law  offenses  have 
been  abolished  a  statutory  offense  of  maintenance 
has  generally  been  created,  and  this,  in  the  main, 
consists  of  an  officious  intermeddling  with  a  suit 
or  the  furnishing  of  means  for  its  prosecution  with 
a  view  to  promote  litigation. 

145.  The  courts,  however,  seem  to  have  drawn 
a  line  between  champerty  and  contingent  fees. 
Thus,  if  client  and  attorney  enter  into  a  contract 
whereby  the  latter  is  to  institute  and  prosecute  suits, 
at  his  own  expense,  for  the  recovery  of  property  or 
other  thing  belonging  to,  or  claimed  by,  the  client, 
for  which  his  only  compensation  is  to  be  a  portion 
of  the  property  or  thing  recovered,  then,  however 
honestly  entered  into  and  carried  out,  the  contract, 
it  seems,  is  champertous  and  void.^^  On  the  other 
hand,  if  the  agreement  simply  contemplates  that  the 
attorney  shall  contribute  only  his  labor  and  skill, 
the  client  furnishing  the  money  for  costs  and  ex- 
penses— in  other  words,  the  capital — the  contract 
is  valid,  and  without  taint.  It  may  be  said,  and 
with  much  truth,  that  the  distinction  is  subtle,  but 
it  is  a  distinction  nevertheless  which  the  courts  have 
made  and  which  they  continue  to  recognize. 

146.  The  ancient  doctrine  of  maintenance  grew 
out  of  conditions  which  do  not  exist  and  never  have 

''^  Thompson  v.  Reynolds,  Ti  111.  11;  Coleman  v.  Billings, 
89  111.  183. 


90  ESSAYS    IN   LEGAL   ETHICS. 

existed  in  the  United  States.  Having  little  or  no 
foundation  in  reason  it  has  fallen  into  disuse,  and 
the  general  rule  now  is  that  any  person  claiming  a 
right  may  contract  to  pay,  for  legal  services  ren- 
dered in  vindicating  it,  a  stipulated  portion  of  the 
thing,  or  of  the  value  of  the  thing,  when  recovered, 
the  payment  to  be  dependent  solely  upon  such 
recovery,  instead  of  paying,  or  contracting  to  pay, 
a  sum  certain  and  in  any  event.^^  Such  an  agree- 
ment does  not  conflict  with  the  law  as  now  admin- 
istered, nor  does  it,  in  any  proper  sense,  contravene 
any  principle  of  public  policy.  Hence,  such  con- 
tracts are  now  generally  sustained  and  about  all  that 
the  law  will  do  in  such  a  case  is  to  scrutinize  the 
transaction  and  see  that  it  is  fair,  and  that  no  im- 
proper advantage  has  been  taken  either  of  the  neces- 
sities or  the  ignorance  of  the  client.^^ 

147.  Continued — ethical  objections.  It 
would  seem,  therefore,  that  no  question  can  be 
raised  as  to  the  lawfulness  of  this  method  of  com- 
pensation, and,  if  it  is  lawful  to  enter  into  contracts 
of  this  character,  are  they  open  to  ethical  objec- 
tions? The  answers  to  this  question  are  as  various 
as  the  minds  of  men.  By  some  it  is  contended  that, 
even  though  we  admit  the  legality  of  the  practice, 
it  is  yet  inconsistent  with  that  high  standard  of 

»*Newkirk  v.  Cone,  18  111.  449;  McDonald  v.  R.  R.  Co. 
29  Iowa,  170;  Cain  v.  Warford,  33  Md.  23;  Ballard  v.  Carr, 
48  Cal.  74. 

95  Chester  County  v.  Barber,  97  Pa.  St.  455. 


COMPENSATION.  91 

moral  excellence  which  the  members  of  a  learned 
and  honorable  profession  should  ever  propose  to 
themselves;  that  its  effect  is  to  reduce  the  counsel 
from  his  high  position  of  an  officer  of  the  court,  to 
that  of  a  party  litigating  his  own  claim,  and  that, 
having  now  a  deep  personal  interest  in  the  event 
of  the  controversy,  he  will  cease  to  consider  him- 
self subject  to  the  ordinary  rules  of  professional 
conduct,  and,  as  a  consequence,  there  must  come 
a  lowering  of  professional  character.^*^ 

148.  A  better  laid  objection,  perhaps,  is  found 
in  the  fact  that  it  places  attorney  and  client  in  a 
new  and  dangerous  relation,  that  of  partners  in  a 
common  enterprise.  The  attorney  is  no  longer  an 
agent,  to  follow  instructions  or  advise  his  client, 
but  a  principal,  with  a  right  to  speak  and  act  as 
such.  It  must  be  admitted  that  this  objection  is 
not  without  much  force. 

149.  It  is  also  urged,  as  an  ethical  objection  to 
contingent  fees,  that  their  tendency  is  to  unduly 
encourage  litigation  and  that  many  would  never 
think  of  entering  upon  a  law  suit  if  they  knew  that 
whether  they  should  win  or  lose  they  would  yet 
have  to  pay  their  lawyer.  But  when  an  attorney 
can  be  found  who  is  willing  to  assume  any  kind  of 
a  claim,  upon  a  contingent  agreement  for  compensa- 
tion, it  reduces  legal  practice  to  a  sort  of  a  lottery, 
turns  the  lawyer  into  a  sordid  huckster,  lowers  pro- 
fessional character  and  destroys  professional  honor. 

^*  Sharswood,  Legal  Ethics,  160. 


92  ESSAYS    IN    LEGAL   ETHICS. 

150.  On  the  other  hand,  it  is  contended  that  if 
a  person  could  not  secure  counsel  by  a  promise  of 
large  fees  in  case  of  success,  to  be  derived  from  the 
subject-matter  of  the  suit,  it  would  often  place  the 
poor  in  such  a  condition  as  to  amount  to  a  practical 
denial  of  justice.  It  not  infrequently  happens  that 
persons  are  injured  through  the  negligence  or  wil- 
ful misconduct  of  others,  but  who  yet,  by  reason 
of  poverty,  are  unable  to  employ  counsel  to  assert 
their  rights.  In  such  event  their  only  means  of 
redress  lies  in  gratuitous  service,  which  is  rarely 
given,  or  in  their  ability  to  find  some  one  who  will 
conduct  the  case  for  a  contingent  fee.  That  rela- 
tions of  this  kind  are  often  abused  by  speculative 
attorneys  or  that  suits  of  this  character  are  turned 
into  a  sort  of  commercial  traffic  by  the  "personal 
injury"  lawyer,  does  not  destroy  the  beneficent  idea 
last  discussed.  So  it  will  be  seen  that  much  can 
be  said  in  favor  of  contingent  fees,  viewed  solely 
from  an  ethical  standpoint. 

151.  Compensation  of  assigned  counsel. 
While  the  rule  is  general  that  an  attorney  rendering 
service  to  another  is  entitled  to  compensation  there- 
for, it  is  yet  subject  to  an  important  exception.  It 
is  a  familiar  provision  of  the  criminal  codes  of  all 
of  the  states  that,  where  a  person  is  charged  with 
the  commission  of  a  crime,  and  is  unable  to  employ 
counsel  to  conduct  his  defense,  it  shall  be  the  duty 
of  the  court  to  assign  counsel  to  such  person  for 


COMPENSATION.  93 

this  purpose.    A  counsel  so  selected  is  obliged  to 
serve,  and  that,  too,  without  compensation. 

152.  It  hardly  seems  just  that  a  person  thus 
conscripted  and  compelled  to  serve,  should  also  be 
obliged  to  give  his  time  and  talent  as  a  gratuity, 
and  in  many  states  the  injustice  has  so  far  been 
recognized  that  a  nominal  fee,  payable  from  the 
public  treasury,  has  been  provided.  But,  in  the 
absence  of  such  provision,  an  attorney  thus  ap- 
pointed is  without  remedy  and  can  recover  nothing 
for  his  services  from  the  county  wherein  the  trial 
was  had.^^  As  the  service  is  compulsory  this  looks 
very  much  like  an  attempt  to  appropriate  the  prop- 
erty and  labor  of  another  without  just  compensa- 
tion, and  this  theory  has  often  been  advanced  as  a 
reason  for  remuneration  by  the  state. 

153.  In  answer  to  the  foregoing  it  is  said,  that 
attorneys  rendering  services  of  this  character  do 
receive  a  compensation  in  the  privileges  conferred 
by  their  licenses.  That  while  the  law  confers  on 
licensed  attorneys  rights  and  privileges  it  also  im- 
poses duties  and  obligations,  and  that  these  must 
be  reciprocally  enjoyed  and  performed.  The  right 
to  assign  counsel  to  poor  prisoners  is  inherent  in 
the  court;  the  duty  of  accepting  such  assignments 
is  incident  to  the  advocate's  office,  a  burden,  as  it 
were,  imposed  upon  it.  When  an  attorney  applies 
for  and  receives  his  license  he  takes  it  burdened 
with  this  duty,  and  having  voluntarily  accepted  the 

^^  Johnson  v.  Whiteside  County,  no  111.  22. 


94  ESSAYS   IN   LEGAL  ETHICS. 

privileges  he  is  deemed  also  to  have  assumed  the 
attendant  obligations,  and  must  be  held  to  their  per- 
formance. When  he  defends  a  criminal,  under  an 
assignment  of  the  court,  he  but  performs  an  official 
duty,  and,  if  no  compensation  is  provided  for  such 
service,  none  can  be  claimed.^^ 

154.  While,  in  practice,  the  judicial  preroga- 
tive of  assigning  counsel  is  usually  confined  to 
criminal  cases,  yet  it  seems  the  court  has  the  right 
to  command  the  services  of  counsel,  for  persons 
unable  to  pay,  in  civil  cases  as  well,  and  this  right 
is  still  occasionally  exercised.^® 

155.  Forfeiture  of  right  of  compensation. 
In  many  respects  an  attorney,  in  the  conduct  of  a 
litigation  or  the  management  of  an  estate,  resembles 
a  trustee,  and  the  rules  that  govern  trustees  will, 
in  a  measure,  apply  to  him,  particularly  in  the  mat- 
ter of  compensation.  He  sustains  toward  the  client 
and  those  interested,  a  special  relation  of  trust  and 
confidence  not  unlike  that  of  a  trustee.  The  old 
rule  allowed  no  compensation  for  the  performance 
of  a  conscientious  duty,  and  this  rule  affected  both 
trustees  and  counselors.  In  modern  practice  the 
old  rule  has  been  reversed  and  a  trustee  is  now 
allowed,  as  a  matter  of  right,  a  reasonable  and  just 
sum  in  payment  for  his  services,  upon  the  principle 

^8  See,  Johnson  v.  Whiteside  County,  no  111.  22;  Wayne 
County  V.  Waller,  90  Pa.  St.  99;  Rowe  v.  Yuba  County,  17 
Cal.  61. 

98  House  V.  White,  5  Baxter  (Tenn.)  690. 


COMPENSATION.  95 

that  he  who  renders  an  honest  service  is  entitled  to 
an  honest  compensation  therefor. 

156.  It  is  equally  well  settled,  however,  that  if 
a  trustee  has  been  guilty  of  fraud,  willful  default, 
or  gross  negligence  in  the  administration  of  the 
trust,  compensation  to  which  he  would  otherwise 
be  entitled,  will,  as  a  general  rule,  be  denied  to  him, 
and  this  rule  has  always  been  regarded  as  just  and 
wholesome.^  Its  enforcement  tends  to  secure  an 
honest  and  faithful  discharge  of  official  duty  and 
to  curb  the  temptation  to  abuse  the  trust.  The  con- 
tract which  the  law  implies  from  an  attorney's 
employment  is  that  he  will  render  faithful  and  hon- 
est service ;  that  he  will  be  reasonably  prudent,  care- 
ful and  dilligent ;  and  that  he  will  bring  to  the  work 
in  hand  a  fair  measure  of  skill  and  technical  learn- 
ing. If  this  contract  is  violated  he  is  not  entitled 
to  any  compensation  for  his  services,  and  if  injury 
results  he  may  further  be  held  to  answer  in  dam- 
ages. The  basis  of  the  rule  is  good  morals  and  a 
sound  public  policy,  and,  where  the  fraud,  bad  faith, 
neglect  or  ignorance  of  the  attorney  is  made  to 
appear,  courts  will  not  hesitate  to  apply  it.^ 

1  2  Perry,  Trusts,  §  919. 

2  See,  Davis  v.  Nat.  Bank,  78  Minn.  408. 


CHAPTER  VI. 

GENERAL   PRACTICE. 

Defined — The  place  of  morality  in  practice — The  duty  of 
veracity — The  client  and  his  cause — Production  of  tes- 
timony— Examination  of  witnesses — Instructing  and 
advising  witnesses — Attorneys  as  witnesses — Address- 
ing the  jury — Tampering  with  records — Abuse  of  pro- 
cess— Duty  to  third  persons. 

157.  Definatory.  The  actual  application  of  the 
lawyer's  knowledge  and  skill  to  the  ordinary  affairs 
of  life  is  called  practice.  This  includes  not  only 
the  direction  and  conduct  of  litigation,  but  every 
form  of  legal  effort  and  activity.  It  involves  all  of 
the  professional  relations  he  may  sustain  and  covers 
everything  he  may  do  or  say  in  his  professional 
capacity.  The  special  features  of  such  relations  are 
reserved  for  succeeding  chapters,  while  the  para- 
graphs immediately  following  will  be  devoted  to 
brief  considerations  of  a  few  of  the  general  phases 
that  our  subject  may  seem  to  present. 

158.  Morality  in  practice.  For  many  years 
the  legal  profession  has  been  the  object  of  attacks, 
by  an  ill-informed  element  of  the  laity,  on  account 
of  the  methods  observed  in  practice.  We  commence 
to  meet  with  these  detractions  at  a  comparatively 
early  stage  of  professional  development,  and  the 
time-worn  argument  that  the  lawyer's  occupation 

96 


GENERAL    PRACTICE.  97 

is  to  employ  all  the  resources  that  learning  and  skill 
can  supply  in  advocating  whatever  cause  he  is  paid 
to  undertake,  and  in  specious  and  plausible  attempts 
to  make  the  worse  appear  the  better  side,  still  con- 
tinues to  find  expression.^ 

159.  That  venality  exists  among  certain  mem- 
bers of  the  bar  it  would  be  idle  to  deny.  Unfortu- 
nately, men  have  been  admitted  to  the  privileges 
of  advocacy  who  are  utterly  incapable  of  under- 
standing its  duties  or  assuming  its  responsibilities, 
and,  until  a  more  rigid  rule  of  moral  qualification 
shall  be  applied,  such  men  will  probably  continue  to 
be  admitted.  Through  their  baneful  influence  and 
pernicious  example  the  ancient  standing  of  the  pro- 
fession has  been  perceptibly  lowered,  and  it  devolves 
upon  the  younger  element  now  coming  in — the  men 
for  whom  these  lines  are  penned — to  restore  to  all 

3  A  good  example  is  afforded  by  Swift,  who,  in  the  "Voy- 
age to  the  Houyhnhnms,"  makes  Gulliver  tell  his  master,  the 
Grey  Horse,  that  "there  was  a  society  of  men  among  us,  bred 
from  their  youth  in  the  art  of  proving,  by  words  multiplied 
for  the  purpose,  that  black  is  white,  and  white  is  black,  ac- 
cording as  they  are  paid.  To  this  society  all  the  rest  of  the 
people  are  slaves.  It  is  likewise  to  be  observed,  that  this 
society  has  a  peculiar  cant  and  jargon  of  their  own,  that  no 
other  mortal  can  understand,  and  wherein  all  their  laws  are 
written,  which  they  take  special  care  to  multiply;  whereby 
they  have  wholly  confounded  the  very  essence  of  truth  and 
falsehood,  of  right  and  wrong,  so  that  it  will  take  thirty 
years  to  decide  whether  the  field  left  me  by  my  ancestors 
for  six  generations  belongs  to  me  or  to  stranger  three  hun- 
dred miles  off." 


98  ESSAYS    IN   LEGAL   ETHICS. 

their  pristine  vigor  the  principles  that  made  the 
profession  of  law  a  calling  of  honor. 

1 60.  But,  while  we  are  forced  to  admit  the  occa- 
sional abuse  of  the  advocate's  privileges  by 
unworthy  men,  yet  we  may  strenuously  deny  the 
general  truth  of  the  statement  of  our  detractors 
above  noted.  No  lawyer  of  standing  supposes  him- 
self to  be  a  mere  agent  of  his  client,  to  gain  a  vic- 
tory in  the  particular  case  in  any  event  and  at  all 
hazards,  but,  knowing  what  is  due  to  himself  and 
his  honorable  profession,  his  efforts  are  qualified 
not  only  by  considerations  affecting  his  own  char- 
acter as  a  man  of  honor  and  learning,  but  also  by 
considerations  affecting  the  welfare  of  society  and 
the  general  interests  of  justice.'*  The  men  whose 
names  stand  highest  on  the  roll  of  fame  have  been 
pre-eminent  for  these  qualities,  and  the  young  advo- 
cate, ambitious  for  advancement,  will  find  that  he 
will  best  conserve  his  own  interests  by  emulating 
their  example. 

161.  The  duty  of  veracity.  It  is  said,  that 
truth  is  the  foundation  of  every  virtue,  and  in  the 
practice  of  law  its  due  observance  is  absolutely 
essential  to  that  kind  of  success  which  should  con- 
stitute the  lawyer's  highest  ambition.  But  modern 
society  has  produced  many  conventions,  and  the 
practice  of  law  is  not  without  them.  Therefore, 
some  moralists  have  gone  so  far  as  to  say  that,  in 
the  case  of  advocates,  these  conventions  may  be  per- 

*  Hutchinson  v.  Stephens,  i  Keen  (Eng.)  668. 


GENERAL    PRACTICE.  99 

mitted  to  supersede  the  general  rule  of  truth.'^  In 
support  of  this  it  is  contended  that  the  profession 
of  advocacy  exists  as  an  instrument  in  the  admin- 
istration of  justice;  that  it  is  a  necessary  maxim 
of  the  advocate's  profession  that  he  is  to  do  all  that 
can  be  done  for  his  client;  that  the  application  of 
the  laws  is  a  matter  of  great  complexity  and  diffi- 
culty ;  that  their  application  in  doubtful  cases  is  best 
provided  for  if  the  arguments  on  each  side  be  urged 
with  the  utmost  force,  leaving  the  judge  alone  to 
decide,  and  that,  for  this  purpose,  each  advocate 
must  urge  all  the  arguments  he  can  devise  and 
with  all  the  skill  he  can  command.  Further,  that 
this  duty  is  not  affected  by  any  belief  of  his  own 
upon  the  subject. 

162,  But  this  does  not,  in  all  respects,  represent 
the  thought  of  the  better  element  of  the  bar,  neither 
does  it  coincide  with  the  practice  of  those  who  see 
in  the  conduct  of  lawsuits  something  more  than 
mere  forensic  battles  waged  by  paid  champions 
ready  to  espouse  either  side  of  an  argument.  We 
may  therefore  turn  to  another  class  of  moralists, 
whose  views  more  truly  express  the  fundamental 
ideas  involved  in  legal  practice.  It  is  generally 
admitted  that,  to  answer  the  ends  of  justice  in  a 
community,  there  should  exist  a  profession  of  advo- 
cates, ready  to  urge,  with  full  force,  the  arguments 
on  each  side  in  doubtful  cases.  And  if  the  advo- 
cate, in  exercising  his  profession,  allows  it  to  be 

°  See,  Paley,  Moral   Philosophy,  b.  iii,  c.  15. 


lOO  ESSAYS    IN   LEGAL   ETHICS. 

understood  that  this  is  all  he  undertakes  to  do,  then 
it  is  further  conceded  he  does  not  transgress  his 
duties,  even  in  pleading  for  a  bad  cause;  since  even 
for  a  bad  cause  there  may  be  arguments,  and  even 
good  arguments.  But  if,  in  the  conduct  of  the  cause 
he  asserts  his  belief  that  it  is  just,  when  he  believes 
it  to  be  unjust,  if  he  advances  as  true,  that  which 
he  knows  to  he  untrue,  he  offends  against  truth; 
just  as  any  other  man  would  do  who,  in  like  man- 
ner, made  the  same  assertions.^ 

163,  It  is  further  contended  by  this  school,  that 
every  man  is,  in  an  unofficial  sense,  by  being  a 
moral  agent,  a  judge  of  right  and  wrong  and  an 
advocate  of  what  is  right;  and  is,  so  far,  bound  to 
be  just  in  his  judgments  and  sincere  in  his  exhorta- 
tions. This  general  character  of  a  moral  agent,  it 
is  contended,  cannot  be  put  off  by  merely  putting 
on  professional  character,  for  every  man,  when  he 
advocates  a  case  in  which  morality  is  concerned,  has 
an  influence  upon  those  around  him  which  arises 
from  the  belief  that  he  shares  the  moral  sentiments 
of  mankind.  This  influence  of  his  supposed 
morality  is  one  of  his  possessions,  which,  like  all 
of  his  possessions,  he  is  bound  to  use  for  moral  ends. 
If  he  mix  up  his  character  as  an  advocate  with  his 
character  as  a  moral  agent,  using  his  moral  in- 
fluence for  the  advocate's  purpose,  he  acts  immor- 
ally. He  sells  to  his  client,  not  only  his  skill  and 
learning,  but  himself,  and  makes  it  the  supreme 
«  Whewell,  Elements  of  Morality,  b.  iii,  c.  15. 


GENERAL    PRACTICE.  'lOI 

object  of  his  life  to  be,  not  a  good  man,  but  a  suc- 
cessful lawyer/ 

164.  It  is  further  urged  by  the  moralists,  that 
the  advocate  must  look  upon  his  profession,  like 
every  other  endowment  and  possession,  as  an  in- 
strument which  he  must  use  for  the  purposes  of 
morality.  That  to  act  uprightly  is  his  proper 
object;  to  succeed  as  a  lawyer  is  a  proper  object, 
only  so  far  as  it  is  consistent  with  the  former.  Mak- 
ing all  due  allowances  for  the  vagaries  of  the 
non-professional  mind  we  may  yet  say  that  the  fore- 
going is  in  full  accord  with  the  precept  and  practice 
of  the  legal  profession,  and  the  sentiments  above 
expressed  must  commend  themselves  to  every 
thoughtful  man.  And  while  it  is  true  that  the  law 
has  conventions,  and  that  without  them  the  forms 
of  justice  could  not  be  successfully  administered, 
yet  these  conventions  are  not  inconsistent  with  the 
general  rule  of  truth,  nor  does  their  employment 
necessitate  any  insincerity  on  the  part  of  the  advo- 
cate. 

165.  The  client  and  his  cause.  The  matters 
discussed  in  the  preceding  paragraphs  bring  us  to 
a  consideration  of  some  of  the  more  practical 
phases  of  advocacy,  and  the  moral  position  which 
the  advocate  sustains  in  respect  to  same.  To  every 
disputed  question  of  fact  there  must,  of  course,  be 
two  sides,  and  in  nearly  all  questions  of  the  applica- 
tion of  law  there  is  room  for  honest  contention  and 

TWhewell,  Ibid. 


102  ESSAYS    IN   LEGAL   ETHICS. 

difference  of  opinion.  It  is  immaterial  that  one  side 
is  right  and  one  side  is  wrong,  or  that  one  attorney 
has  assumed  to  represent  the  wrong  side  of  the 
contest.  The  only  moral  question  involved  is, 
whether  he  has  thus  assumed  to  represent  iniquity 
knowing  it  to  be  such.  Now  it  is  a  matter  of  com- 
mon observation  that  two  eye-witnesses  of  an  event 
never  see  it  exactly  alike  and,  however  honest  or 
impartial  they  may  be,  will  never,  if  left  to  them- 
selves, describe  it  in  the  same  terms.  Thus,  take 
the  case  of  an  affray.  The  situation  of  the  wit- 
nesses, the  excitement  of  the  moment,  the  uncon- 
scious bias  produced  by  the  state  of  the  feelings,  all 
tend  to  affect  their  view,  producing  even  opposite 
aspects  of  the  memory.  If  such  differences  arise 
ill  the  recollection  of  impartial  persons,  it  cannot 
be  surprising  that  each  of  the  combatants  is  con- 
fident that  he  is  the  injured  party,  and  communi- 
cates his  case,  in  that  confidence,  to  his  counsel. 
Sympathy  is  the  soul  of  advocacy.  The  result  is 
that  the  statement  of  a  case  is  generally  such  as  to 
induce  in  counsel  a  strong  belief  in  the  justice  of 
the  cause,  and  to  enlist  his  warmest  feelings  for  its 
success.  This  is  a  plain  statement  of  the  ordinary 
case. 

1 66.  To  one  thus  prepossessed  in  favor  of  the 
cause,  the  animation  of  the  contest  only  deepens 
and  strengthens  first  impressions;  and  as  the  little 
chapter  of  life,  with  all  its  living  interest,  opens 
around  him,  his  client's  case  becomes  a  part  of  his 


GENERAL    PRACTICE.  103 

own  being.  His  belief  in  its  justice  insensibly  but 
inseparably  blends  with  his  natural  desire  to  suc- 
ceed, and  he  hears  all  the  arguments  and  regards  all 
the  testimony  against  it,  with  the  surprise,  dislike, 
and  incredulity  of  inveterate  opinion  sharpened  by 
zeal.  In  this  spirit  he  conducts  the  case,  and  even 
though  defeated  he  remains,  in  many  instances, 
unconvinced,  feeling  that  there  has  been  a  failure 
of  justice  and  vainly  regretting  the  insufficiency  of 
his  own  exertions.  Thus  it  will  be  seen  that  an 
advocate  may  honestly  engage  on  either  side  of  a 
cause  dependent  on  disputed  facts,  notwithstanding 
that  such  case  involves  a  direct  opposition  of  truth 
and  falsehood.  The  antithesis  of  right  and  wrong, 
considered  as  legal  concepts,  will  be  found  in  all 
disputed  cases.  But  it  does  not  follow  because  of 
this,  that  the  counsel  who  supported  the  losing,  and 
hence  the  wrong,  side  of  the  controversy  has 
thereby  offended  against  morals. 

167.  But  right  and  wrong  in  legal  contests  are 
very  seldom  separated  by  sharply  defined  lines.  It 
does  not  follow,  because  one  side  has  lost,  that  it 
was  wholly  destitute  of  the  elements  of  right  nor 
that  the  prevailing  side  may  not  have  shown  wrong- 
ful features,  for,  in  most  cases,  the  truth  is  drawn 
from  both  sides  and  the  ultimate  right  is  reached 
by  the  efforts  of  the  advocates  on  either  side.  Thus, 
in  an  action  on  the  case  for  unliquidated  damages, 
the  counsel  who  shows  the  wrong  to  be  compen- 
sated, and  he  who  suggests  the  grounds  of  mitiga- 
tion, may  both  be  right,  each  taking  his  own  share 


104  ESSAYS   IN   LEGAL   ETHICS. 

in  presenting  the  truth  to  the  minds  of  the  jury. 
Unfortunately,  the  moralists  never  seem  to  grasp 
these  distinctions,  and  it  is  because  of  the  superficial 
views  which  they  generally  take  that  much  of  the 
misconception  of  the  advocate's  office  has  arisen. 

1 68.  Production  of  testimony.  The  decisions 
of  courts,  in  all  disputed  matters,  are  based  on  the 
existence  or  non-existence  of  facts.  Facts  are  estab- 
lished by  the  evidence  produced  at  the  hearing,  or 
trial  of  the  cause.  The  truth  of  the  matter  in  dis- 
pute is  reached  by  a  consideration  of  the  testimony, 
or  the  statements  of  the  witnesses.  These  state- 
ments, in  the  case  of  living  witnesses — persons,  are 
delivered  orally  and  under  the  sanction  of  an  oath. 
This  oath  is  a  promise  on  the  part  of  the  witness 
that,  in  the  cause  then  on  trial,  his  testimony  shall 
be  "the  truth,  the  whole  truth,  and  nothing  but  the 
truth."  To  speak  the  truth  at  all  times  is  a  moral 
duty;  to  speak  the  truth  in  judicial  investigations 
is  a  legal  duty  as  well. 

169.  It  is  contended  by  the  moralists  that  the 
concealment  of  any  truth  which  relates  to  the  mat- 
ter in  dispute  is  as  much  a  violation  of  the  oath  as 
a  false  statement;  that  the  duty  to  speak  "the  whole 
truth"  requires  of  the  witness  a  complete  and  unre- 
served account  of  all  that  he  knows  respecting  the 
subject  of  the  trial,  whether  the  questions  proposed 
to  him  reach  the  extent  of  his  knowledge  or  not.® 

^  See,  Paley,  Moral  Philosophy,  b.  iii,  c.  17 ;  ChampHn, 
Principles  of  Ethics,  iii;  Wayland,  Moral  Science,  304. 


GENERAL    PRACTICE.  105 

If  this  be  true,  then  a  corresponding  duty  would  cer- 
tainly seem  to  devolve  upon  counsel  to  disclose 
every  fact  connected  with  the  case,  including  those 
that  tend  to  operate  against  him  as  well  as  those 
that  go  to  support  his  contention. 

170.  But  this  view,  like  many  of  the  visionary 
and  fanciful  theories  of  the  moralists,  is  rejected  in 
legal  practice.  No  person  is  under  obligation,  legal 
or  moral,  to  tell  the  whole  truth,  even  when  inter- 
rogated thereon,  if  the  answer  would  tend  to  crim- 
inate him,  for  the  law  will  not  compel  any  man  to 
be  a  witness  against  himself.  So,  too,  from  motives 
of  public  policy,  transactions  arising  in  a  number 
of  relations  are  not  permitted  to  be  disclosed,  even 
though  the  effect  of  such  rule  is  to  suppress  the 
truth.  The  law  has  further  provided  a  certain 
formula  for  the  production  of  testimony,  and  one 
of  the  delicate  arts  of  the  advocate,  in  the  employ- 
ment of  such  formula,  is  to  present  only  those  mat- 
ters which  tend  to  promote  his  cause  and  to 
suppress  those  which  militate  against  it,  and  the 
examination  of  witnesses  is  conducted  with  this  end 
in  view.  While  the  duty  of  counsel,  in  examining 
a  witness,  certainly  is  to  elicit  the  truth,  and  noth- 
ing but  the  truth,  yet  only  so  much  of  it  as,  in  his 
judgment,  may  be  calculated  to  benefit  the  cause 
of  his  client,^  and  the  books  contain  many  rules  and 
suggestions  based  on  this  theory. 

171.  Nor  does  this  theory,  and  the  practice  that 
8  Reynolds,  Theory  of  Evidence,  §  117. 


io6  ESSAYS    IN   LEGAL   ETHICS. 

is  built  upon  it,  in  any  way  contravene  the  precepts 
of  a  sound  morality,  however  much  it  may  conflict 
with  the  self-erected  standards  of  the  moralists.  A 
party  feeling  himself  aggrieved,  from  any  cause, 
applies  to  a  court  for  redress.  He  states  his  griev- 
ance and,  in  so  doing,  makes  certain  averments. 
These  averments  he  must  sustain  upon  the  hearing 
or  be  non-suited.  That  is  about  all  there  is  to  it. 
He  must  prove  all  that  he  has  averred,  but  no  more 
than  he  has  averred,  and  all  that  is  required  of  him, 
in  the  first  instance,  is  to  produce  evidence  suffi- 
cient, if  undisputed,  to  establish  the  truth  of  the 
matters  alleged.^ °  If  the  allegations  are  denied  this 
is  a  matter  of  defense,  which  plaintiff  is  not  re- 
quired to  anticipate,  and  the  production  of  testi- 
mony to  sustain  such  defense  is  left  to  his  adversary. 
It  is  by  these  methods  that  courts  arrive  at  the 
truth  of  the  matter  in  dispute,  and  the  long  expe- 
rience of  many  centuries  has  demonstrated  the  wis- 
dom of  the  procedure.  While  the  witness  is  sworn 
to  tell  the  "whole"  truth,  this  means  nothing  more 
than  that  he  shall  not  wilfully  conceal  any  matter 
concerning  which  he  may  be  interrogated  nor  sup- 
press the  truth  of  same  when  it  is  called  for.  The 
witness  is  under  no  obligation  to  volunteer  infor- 
mation, and  usually  will  not  be  permitted  so  to  do, 
nor  is  counsel  required  to  bring  out  any  fact  that 
he  may  deem  prejudicial  to  his  case. 

172.     Examination  of  witnesses.     It  is  not 
10  Steams  v.  Field,  90  N.  Y.  640. 


GENERAL   PRACTICE.  107 

proposed  to  present  a  disquisition  on  the  examina- 
tion of  witnesses,  nor  to  suggest  methods  by  which 
this  deHcate  function  of  the  advocate's  occupation 
shall  be  exercised,  but,  in  a  work  purporting  to  dis- 
cuss the  ethical  side  of  practice  a  passing  allusion  to 
the  subject  seems  eminently  proper  if  not  necessary. 
In  no  other  department  of  professional  activity  does 
the  astute  lawyer  display  to  better  advantage  his 
legal  acumen,  and  cases  are  lost  and  won,  in  many 
instances,  by  the  ability  or  non-ability  of  counsel  in 
dealing  with  the  evidence.  The  books  are  replete 
with  suggestions  relative  to  the  manner  in  which 
examinations  should  be  conducted  and  the  methods 
to  be  employed,  and  to  them  the  reader  is  referred, 
the  only  object  of  the  following  paragraphs  being 
to  show,  in  a  very  general  sort  of  a  way,  what 
should  not  be  done  from  an  ethical  point  of  view. 
173.  Examination  in  chief.  The  first  great 
rule  of  direct  examination  is  that  a  witness  must 
not  be  interrogated  by  leading  questions.  The  rule 
is  both  wise  and  expedient  and  probably  exerts  a 
more  beneficial  effect  in  the  eliciting  of  evidence 
than  any  other.  But,  while  it  seems  very  easy  of 
application,  it  has  yet  been  found  extremely  difficult 
to  be  observed  in  practice,  and,  if  strictly  enforced, 
would  often  prolong  trials  to  an  undue  and  wholly 
unnecessary  extent.  Therefore,  it  has  been  nar- 
rowed somewhat  in  its  scope  by  confining  it  to  such 
questions  only  as  relate  to  the  matter  in  issue.  It 
is  the  proper  practice  to  approach  material  matters 


I08  ESSAYS    IN   LEGAL   ETHICS. 

by  direct  questions,  and  this  practice  is  always  en- 
couraged by  judges  who  are  not  themselves  mere 
legal  martinets,  yet  there  are  always  some  lawyers 
who  desire  to  appear  smart,  quick,  and  attentive, 
and  the  leading  question  generally  offers  an  easy 
mark  for  fustian  forensic  display.  And  so,  when- 
ever an  opportunity  offers,  and  frequently  only  for 
the  sake  of  interruption,  they  are  on  their  feet  with 
an  objection.  Now,  this  is  simply  an  exhibition  of 
priggishness ;  nothing  more.  It  does  not  indicate 
either  learning  or  skill,  and  it  is  offensive  to  every 
man  of  liberal  instincts.  An  objection  should 
always  be  made  where  it  would  properly  seem  to 
lie,  but  it  is  bad  form  to  continually  interject  them 
into  examinations  designed  only  as  preliminary  to 
the  real  matters  involved  in  the  issue. 

174.  But  while  it  is  now  permitted  to  lead  a 
witness  up  to  the  point  at  issue,  yet,  when  the  ques- 
tionable matter  is  reached,  the  rule  applies  in  all  its 
stringency.  This  every  lawyer  is  presumed  to 
know,  and  no  honorable  practitioner  will  intention- 
ally violate  the  rule.  Indeed,  there  are  but  few 
things  that  more  unmistakably  stamp  the  pettifog- 
ger than  a  persistent  line  of  questions  designed  to 
assist  the  witness  or  suggest  the  answers. 

175.  Cross-examination.  The  right  of  cross- 
examination  is  justly  regarded  as  a  valuable  privi- 
lege in  the  trial  of  contested  cases,  and  the  rules  of 
evidence  do  not  permit  the  introduction  of  testi- 
m.ony  which  has  not  been,  or  cannot  be,  subjected 


GENERAL   PRACTICE.  109 

to  this  test.  But,  like  every  other  provision  of  law, 
it  is  intended  only  to  further  the  course  of  justice 
in  the  ascertainment  of  truth.  Therefore,  it  is  a 
privilege  that  should  be  used  only  for  the  end  in- 
tended and  never  abused  or  perverted  from  sinister 
motives. 

176.  The  main  objects  of  cross-examination 
are ;  to  destroy  or  weaken  the  force  of  the  testimony 
given  on  the  direct  examination ;  to  elicit  something 
in  favor  of  the  examiner's  side  of  the  case;  or,  to 
discredit  the  witness.  These  ends  counsel  is  per- 
mitted to  attain,  if  possible,  by  all  fair  means;  but 
only  by  fair  means.  It  is  his  undoubted  privilege 
to  correct  the  mistaken  and  to  confound  the  liar; 
but  only  the  liar.  He  has  a  right  to  employ  all  the 
resources  of  his  art  to  detect  mistakes  and  expose 
falsehood,  but  it  is  mean  and  contemptible  to  seek 
to  entrap  a  witness  into  a  falsehood,  or  to  confuse 
and  perplex  him,  with  a  design  to  discredit  him, 
when  counsel  does  not  believe  him  to  be  swearing 
falsely.  It  is  no  more  permissible  for  counsel  to 
tamper  with  the  truth  in  others,  or  cause  them  to 
confound  or  conceal  it,  than  to  be  false  himself. 
Nor  should  he  descend  to  the  more  insidious  art  of 
inducing  a  witness  to  answer  with  one  meaning  and 
assume  his  reply  to  bear  another,  and  thus  lead  him 
to  give  evidence,  which,  intended  to  be  true,  shall 
have  the  effect  of  falsehood.  Such  conduct  is  a 
species  of  criminal  tricker}^  so  nearly  allied  to  sub- 


no  ESSAYS    IN   LEGAL   ETHICS. 

ornation  of  perjury  that  it  is  difficult,  from  a  moral 
point  of  view,  to  distinguish  between  them. 

177.  Unfortunately  instances  of  the  foregoing 
are  too  common  in  counsel,  who,  with  misdirected 
zeal,  esteem  everything  permissible  that  contributes 
to  the  success  of  their  client's  cause.  But,  in  time, 
such  men  invariably  lose  caste  in  the  profession,  are 
distrusted  by  the  judges  and  rejected  by  juries.  No 
lawyer  can  long  continue  in  the  practice  of  confus- 
ing the  honest,  brow-beating  the  timid,  falsely  con- 
struing the  words  of  a  witness,  or  placing  in  his 
mouth  words  that  were  never  uttered,  without  ac- 
quiring the  character  of  a  trickster.  Men  will  look 
with  suspicion  upon  everything  that  he  says  or  does, 
and  will  finally  come  to  deny  to  him  the  credit  of 
truthfulness  even  when  he  is  dealing  honestly  with 
them. 

178.  When  counsel  has  reason  to  believe  that 
a  witness  is  lying,  and  is  so  assured  in  his  own 
mind,  then  he  may  treat  him  as  a  liar  and  deal  with 
liim  accordingly.  A  cross-examination  is  largely 
under  the  discretion  of  the  court,  and,  for  the  pur- 
pose of  testing  the  credibility  of  a  witness,  counsel 
will  usually  be  permitted  to  cover  a  wide  range  of 
inquiry.  But,  in  such  cases,  the  interrogatories 
should  be  directed  only  to  this  point.  The  privilege 
does  not  carry  with  it  the  right  to  indulge  in  irrele- 
vant investigations  of  the  private  life  of  the  witness, 
nor  to  propound  questions  intended  only  to  degrade 
and  humiliate  him  before  the  jury.    Attacks  of  this 


GENERAL    PRACTICE.  HI 

kind,  under  the  guise  of  cross-examination,  are  not 
only  unjustifiable  in  morals,  but  directly  tend  to 
bring  the  administration  of  the  law  into  disrepute, 
and  to  lessen  the  respect  of  the  people  for  courts 
of  justice.  Therefore,  no  lawyer  who  desires  to 
maintain  the  high  standing  of  his  profession  will 
abuse  the  privilege  of  cross-examination,  and  judges 
who  appreciate  the  true  nature  of  the  judicial  func- 
tion will  always  correct  such  abuse  where  same  is 
attempted. 

179.  Offers  of  improper  evidence.  As  pre- 
viously remarked,  a  lawyer,  a  licentiate  of  the 
courts,  is  presumed  to  be  conversant  with  the  rules 
of  evidence,  and,  being  so  conversant,  is  expected 
to  conform  to  their  requirements  in  the  trial  of 
causes.  The  temptation  to  overstep  the  bounds  is 
often  very  great,  particularly  with  a  witness  who  is 
either  timid  or  stupid,  and,  in  such  cases,  courts 
are  ever  inclined  to  construe  the  rules  with  great 
liberality.  But  while  counsel  may  be  pardoned  for 
an  infraction  of  the  rules,  where  his  only  object  is 
to  elicit  competent  evidence,  no  such  clemency  can 
be  extended  to  one  who  deliberately  and  persistently 
endeavors  to  submit  evidence  that  is  clearly  incom- 
petent and  which,  as  a  lawyer,  he  is  presumed  to 
know  is  incompetent.  Yet  this  is  a  common  offense 
on  the  part  of  many  who  would  resent  the  imputa- 
tion of  unfair  practices,  and  no  little  ingenuity  is 
often  employed  to  draw  out  statements  that  are 
promptly   stricken    out,    yet,    having   in    fact   been 


112  ESSAYS    IN    LEGAL   ETHICS. 

heard  by  the  jury  are  not  without  influence  in  the 
framing  of  the  verdict.  This  has  always  been  re- 
garded as  highly  improper,  and  he  who  resorts  to 
such  methods  places  himself  on  the  plane  of  the 
shyster  and  pettifogger. 

1 80.  Another  device  is  to  make  an  offer  of 
proof  with  an  argument  for  its  admission,  the  argu- 
ment being  intended  not  for  the  court  but  for  the 
jury.  It  has  been  said  that  the  offer  of  evidence 
which  counsel  knows  the  court  must  reject  as  in- 
competent, for  the  mere  purpose  of  the  effect  which 
the  argument  of  its  admissibility  will  have  upon 
the  jury,  is  an  artifice  unworthy  of  a  lawyer.  As 
a  general  proposition,  this  is  true;  and  where  the 
practice  is  persistently  followed  the  offender  should 
be  subjected  to  discipline.  It  is  hard,  however,  to 
draw  the  line  at  all  times  between  the  proper  and 
the  improper  in  the  presentation  of  testimony,  and 
while  counsel  often  offer  incompetent  testimony, 
and  strenuously  insist  that  it  shall  go  to  the  jury, 
it  is  difficult  to  say,  in  many  cases,  that  the  motive 
is  not  honest. 

181.  Coaching  of  witnesses.  A  very  impor- 
tant question  is  raised  when  we  come  to  inquire  into 
the  extent  to  which  a  counsel  may  instruct  the  wit- 
nesses who  are  to  testify  in  a  trial.  The  law  guards 
the  production  of  testimony  with  jealous  care.  It 
will  not  even  permit  a  leading  question,  if  relating 
to  a  material  issue,  to  be  put  or  answered.  This  is 
not  because  the  answer  may  not  be  true,  but  because 


GENERAL    PRACTICE.  1 13 

it  has  been  suggested  by  the  manner  in  which  the 
question  was  framed.  In  such  a  case  the  answer  is 
not  regarded  as  the  free  act  of  the  witness,  but 
rather  as  the  suggestion  of  counsel,  and  because 
such  answer  has,  to  a  certain  extent,  been  molded 
byanother,the  testimony  isrejectedas  incompetent. 

182.  If  this  is  true  of  leading  questions  put  dur- 
ing the  course  of  a  trial,  what  shall  be  said  of  the 
suggestions  made  to  witnesses  during  the  prepara- 
tion for  a  trial?  How  far  is  an  attorney  justified 
in  suggesting  or  dictating  the  answers  that  may  or 
shall  be  made  to  questions  that  may  be  put,  either 
by  himself  or  opposing  counsel,  at  the  hearing?  It 
must  be  confessed  that  the  question  is  one  of  great 
difficulty  in  its  proper  solution. 

183.  It  is  generally  conceded  that  a  discreet  and 
prudent  attorney  may  very  properly  ascertain  from 
witnesses,  in  advance  of  the  trial,  what  they  in  fact 
do  know,  and  the  extent  and  limitation  of  their 
memory,  as  a  guide  to  his  own  exertions,  but  this, 
it  has  been  held,  is  as  far  as  he  may  go,  legally  or 
morally.^  ^  His  duty,  it  is  contended,  is  to  extract 
the  facts  from  the  witness,  not  to  pour  them  into 
him;  and,  while  he  has  a  right  to  learn  all  that  the 
witness  does  know,  he  has  no  right  to  teach  him 
what  he  ought  to  know. 

184.  In  the  foregoing  proposition  we  have  only 
the  simple  question  of  the  propriety  of  instructing 
a  witness ;  the  truth  or  falsity  of  the  answers  is  not 

11  Matter  of  Eldridge,  82  N.  Y.  161. 


114  ESSAYS    IN    LEGAL    ETHICS. 

considered;  it  is  the  fact  of  instruction  only  with 
which  we  are  now  concerned,  and  this,  it  seems,  is 
a  violation  of  professional  ethics.  In  support  of 
this  position  it  is  contended,  that  a  court,  before 
whom  an  issue  is  pending,  has  a  right  to  the  inde- 
pendent and  unwarped  testimony  of  a  witness;  that 
where  the  answers  are  furnished  by  another  the 
court  obtains  neither  the  language  nor  the  memory 
of  the  witness,  but  only  that  of  his  teacher,  and 
that  when  such  testimony  has  been  offered  and  re- 
ceived a  fraud  is  committed  on  the  court.  If  the 
perpetrator  of  this  fraud  is  the  counsel  in  the  case, 
then,  as  an  officer  of  the  court  he  hag  offended,  he 
may  be  subjected  to  its  summary  discipline,  and 
punished  for  a  derogation  from  professional  in- 
tegrity, 

185.  Advising  witnesses.  There  is  another 
phase  of  the  subject  discussed  in  the  last  paragraph 
that  may  properly  claim  our  attention  in  connection 
with  it,  and  this  we  may  distinguish  as  advice  given 
to  witnesses.  While  counsel  may  not  assume  the 
role  of  instructor,  he  may,  with  propriety,  advise 
his  own  witnesses  in  respect  to  their  testimony.  The 
average  witness  will  usually  bring  forward  much 
that  is  incompetent,  irrelevant  and  immaterial ;  it 
is  a  legitimate  function  for  counsel  to  sift  this  and 
to  inform  the  witness  what  is  and  what  is  not 
wanted.  He  may  further  advise  the  witness  with 
respect  to  the  character  and  methods  of  opposing 
counsel  on  cross-examination,  and  caution  him  in 


GENERAL    PRACTICE.  II5 

regard  to  same.  He  may  instruct  the  witness  as  to 
what  evidence  is  and  what  is  not  admissible,  and 
suggest  to  him  his  conduct  and  demeanor  while  on 
the  stand.  Indeed,  in  many  cases  this  would  be  his 
duty.  It  will  rarely  happen  that  men  who  are 
unused  to  the  procedure  of  courts  can  take  the  stand 
without  some  previous  advice,  and  do  justice  to 
either  themselves  or  the  parties. 

186.  A  careful  lawyer  will  always  confer  with 
his  witnesses  in  advance.  He  will  ascertain  what 
they  know  and  the  facts  to  which  they  can  testify. 
He  will  endeavor  to  see  where  he  is  strong  as  well 
as  where  he  is  weak,  and  will  take  due  precautions 
to  guard  his  vulnerable  points.  Now,  it  may  be 
that  he  does  not  desire  all  of  the  facts  within  the 
knowledge  of  the  witness,  and,  while  the  witness  is 
under  a  duty  to  tell  the  truth,  it  is  only  the  truth  so 
far  as  he  may  be  interrogated.  There  is  no  impro- 
priety in  counsel  advising  his  witness  not  to  speak 
of  certain  matters  unless  specifically  questioned 
with  respect  to  same.  This  is  not  "coaching,"  in 
the  sense  in  which  that  term  is  ordinarily  employed. 
Neither  is  there  anything  improper  in  cautioning 
a  voluble  witness  against  saying  too  much,  nor  in 
urging  a  reticent  one  to  tell  all  he  knows,  even 
though  in  so  doing  suggestions  are  required  to  be 
made.  Again,  the  witness  must  frequently  be 
shown  the  difference  between  what  he  actually 
knows  and  what  he  merely  surmises,  and,  to  do  this, 
"instruction"  is  essential. 


Il6  ESSAYS   IN   LEGAL   ETHICS. 

187.  A  favorite  device  with  many  lawyers  is  to 
commence  a  cross-examination  by  asking  the  wit- 
ness who  he  has  talked  with  about  the  case,  or,  by 
asking  him  if  he  has  not  discussed  his  testimony 
with  opposing  counsel.  The  effect  upon  the  wit- 
ness is  usually  embarrassing,  particularly  if  he  is 
ignorant  or  simple.  He  sees  in  the  question  only 
an  imputation  that  he  has  been  coached  for  the  occa- 
sion, and,  in  his  anxiety  to  dispel  this  idea,  not 
infrequently  answers  in  such  a  manner  as  to  expose 
his  own  veracity  to  impeachment.  Of  course,  this 
was  just  what  the  examiner  intended  when  the 
question  was  propounded.  All  this  may  be  avoided 
by  cautioning  the  witness  in  advance,  and  by  direct- 
ing him  to  answer  fully  and  frankly  all  questions 
that  may  be  put  to  him  respecting  the  persons  with 
whom  he  has  talked  as  well  as  the  times  and  places 
where  such  conversations  occurred.  Such  advice 
is  not  only  proper  but,  in  most  cases,  should  be 
given  as  a  part  of  the  attorney's  duty. 

188.  Bribing  witnesses.  Approaching  a  wit- 
ness for  the  purpose  of  influencing  his  testimony, 
being  an  attempt  to  obstruct  the  administration  of 
justice,  has  ever  been  considered  gross  misbehavior 
on  the  part  of  an  attorney.  If  the  act  occurs  in  the 
court  house  it  is  punishable  as  a  contempt,  but, 
wherever  it  may  have  happened,  it  subjects  the 
offender  to  discipline.  As  this  offense  strikes  at  the 
very  foundation  of  judicial  determination  a  wide 
discretion  is  reposed  in  courts  with  respect  to  the 


GENERAL   PRACTICE.  117 

punishment  they  may  inflict,  quite  irrespective  of 
the  laws  that  may  be  enacted  to  preserve  the  peace 
and  dignity  of  the  state,  and  the  cases  are  numer- 
ous where  the  discretion  has  been  exercised.^  ^ 

189.  But,  it  will  frequently  happen  that  wit- 
nesses are  reluctant  or  unwilling  to  attend  and  tes- 
tify, and  sometimes  will  even  stand  out  for  a  sum 
of  money  to  be  paid  them  for  their  testimony.  It 
is  true,  a  witness  within  the  jurisdiction  may  always 
be  brought  in  by  subpoena  and  compelled  to  testify. 
Yet,  the  experience  of  every  lawyer  in  practice  has 
been  that  the  testimony  of  an  unwilling  witness  is 
often  very  unsatisfactory,  and  that  money,  paid  or 
promised,  is  usually  a  powerful  stimulant  for  weak 
memories.  Now  the  question  is:  Do  such  pay- 
ments or  promises  constitute  bribery,  or  the  sem- 
blance of  bribery  ? 

190.  The  statutory  witness  fee  is  very  small. 
Attendance  at  court  not  infrequently  entails  pecu- 
niary hardship  on  the  person  testifying.  The 
exigencies  of  his  business  or  the  circumstances  that 
surround  him  may  be  such  that  to  spend  a  day  or 
several  days  in  court  will  seriously  embarrass  him. 
Because  of  these  things  it  has  become  common  to 
pay  or  promise  to  witnesses  the  actual  value  of 
their  time  consumed  in  the  trial,  and  it  does  not 
seem  that  such  practice  is  repugnant  to  any  rule  of 
law  or  precept  of  morals.    With  respect  to  contin- 

12  Ex  parte  Savin,  I31  U.  S.  267 ;  In  re  Brule,  71  Fed.  Rep. 

943- 


Ii8  ESSAYS    IN   LEGAL   ETHICS. 

gem  fees  agreed  to  be  paid  to  witnesses  in  the  event 
of  the  successful  termination  of  the  matter  in  dis- 
pute there  may,  perhaps,  be  some  room  for  question. 
By  such  a  course  they  become  actually  interested  in 
the  result  of  the  suit.  But  this,  in  itself,  is  im- 
material, as  interested  parties  may  now  testify  the 
same  as  others  and  interest  no  longer  constitutes  a 
disqualification.  If  the  witness  is  called  to  tell  the 
truth  and  not  to  bolster  up  a  falsehood,  then,  not- 
withstanding he  has  been  promised  more  than  the 
statutory  fee,  it  can,  in  no  just  sense,  be  called 
bribery.  Its  effect  is  not  to  obstruct  the  administra- 
tion of  justice,  but  rather  to  facilitate  same. 

191.  The  law  contemplates  that  a  witness  shall 
be  paid  for  his  time  as  well  as  reimbursed  for  his 
expenses,  and  no  witness  can  be  compelled  to  tes- 
tify in  a  civil  case  unless  his  fee  has  been  paid  or 
tendered.  In  the  case  of  experts,  large  fees  are  now 
demanded  and  openly  paid.  In  principle  there  is 
no  difference  between  the  witness  who  testifies  to 
opinions,  and  the  witness  who  testifies  to  facts ;  both 
are  simply  aids  in  the  ascertainment  of  truth.  In 
order  that  every  one  may  have  the  benefit  of  wit- 
nesses to  support  their  contention  the  legal  fee  has 
been  reduced  to  a  minimum,  but  there  is  no  rule  of 
law  that  prohibits  the  payment  of  more  than  the 
statutory  allowance.  The  gist  of  the  question 
seems  to  lie  in  the  purpose  with  which  the  money 
is  paid  or  promised,  rather  than  in  the  payment  or 
promise  itself.     If  such  purpose  is  to  corrupt  the 


GENERAL   PRACTICE.  1 19 

witness,  either  by  inducing  him  to  testify  falsely  or 
not  to  testify  to  what  he  knows,  then  it  is  bribery, 
and  punishable  as  such. 

192.  Witness  in  his  own  cause.  It  is  an  un- 
written law  of  the  legal  profession  that  an  attorney 
may  not  be  a  witness  in  the  cause  he  is  conducting. 
The  rule  is  scrupulously  observed  by  every  self- 
respecting  lawyer,  and  yet  it  seems  to  rest  wholly 
on  ethical  grounds.  It  is  not  contrary  to  any 
statute,  nor  even  to  any  maxim  of  the  common 
law,  for  an  attorney  to  take  the  stand  for  his  client, 
and  while  courts  may  endeavor  to  discountenance 
the  practice  they  are  powerless  to  prevent  it.^^  It 
would  seem  that  in  England  it  has  been  held  a  per- 
son may  not  appear  in  the  double  capacity  of  wit- 
ness and  advocate,  but  in  this  country  the  courts 
have  done  no  more  than  to  condemn  the  practice  as 
indecent  and  in  violation  of  professional  propriety.^* 

193.  An  attorney  occupying  the  dual  position 
of  witness  and  advocate  necessarily  subjects  his 
testimony  to  criticism,  if  not  to  suspicion,  and,  if 
he  has  any  pecuniary  interest  in  the  result  of  the 
suit,  places  himself  in  a  strictly  unprofessional 
attitude.^^  If  it  becomes  necessary  for  him  to  tes- 
tify, or  if  he  voluntarily  offers  himself  as  a  witness, 
then,  in  common  decency,  he  should  withdraw  from 
the  case. 

"  Morgan  v.  Roberts,  38  111.  65. 
1*  Frear  v.  Drinker,  8  Pa.  St.  521. 
IS  Ross  V.  Demoss,  45  111.  447. 


I20  ESSAYS   IN   LEGAL   ETHICS. 

194.  There  may,  perhaps,  be  occasions  when  an 
attorney  is  justified  in  taking  the  stand,  as  when  the 
trial  develops  some  unlooked  for  phase  which 
directly  implicates  or  impugns  his  professional 
integrity,  but  such  occasions  will  be  few  and  far 
between. 

195.  The  rule  that  excludes  the  attorney  from 
the  stand  as  a  witness  to  facts  should  be  equally 
potent  in  excluding  his  unsworn  opinions.  It  is 
a  common  practice  for  lawyers,  in  discussing  the 
evidence,  to  assert  their  own  belief  in  the  truth  of 
the  statements  of  witnesses  or  the  justice  of  the 
cause  they  are  advocating.  This  is  a  species  of 
testimony,  and  is  so  intended  by  the  speaker.  But 
what  counsel  may  believe  or  disbelieve,  is  wholly 
immaterial.  His  province  is  to  induce  belief  in 
others.  This  he  accomplishes,  if  at  all,  by  the  clear- 
ness and  cogency  of  his  arguments.  The  argu- 
ments are  based  on  the  facts  of  the  case,  and  the 
occasions  will  be  rare  when  he  is  justified  in  throw- 
ing the  weight  of  his  own  private  opinion  into  the 
scale  to  favor  the  side  he  represents.  There  may 
be  times  when  peculiar  circumstances  seem  to  call 
for  such  a  course,  but  no  lawyer  can  hope  to  com- 
mand respect  for  opinions  of  this  nature  that  are 
freely  volunteered  in  every  and  all  sorts  of  cases. 

196.  Addressing  the  jury.  The  subject  of 
our  last  paragraph  brings  us  to  one  of  the  most 
important  of  the  lawyer's  functions  in  practice — 
the  argument  to  the  jury.     The  value  of  the  jury 


GENERAL   PRACTICE.  121 

as  a  factor  in  modern  trials  is  an  open  question, 
upon  which  there  exists  a  wide  diversity  of  opinion. 
But,  whatever  may  be  its  worth  or  worthlessness, 
it  is  yet  a  factor  in  the  determination  of  many  dis- 
puted matters  of  fact,  and  much  of  the  forensic 
effort  of  the  advocate  Hes  in  attempts  to  persuade 
and  convince  this  branch  of  the  court.  It  is  the 
right  of  counsel  to  address  the  jury  upon  every  mat- 
ter legitimately  bearing  upon  the  particular  case, 
and  about  the  only  inflexible  rule  that  can  be  applied 
to  his  address  is :  he  must  keep  within  the  evidence. 
But  the  evidence  may  be  examined,  analyzed,  col- 
lated, sifted  and  generally  treated  in  his  own  way. 
Whatever  of  argument,  suggestion,  or  inference 
can  be  constructed  or  deduced  from  it  in  support  of 
his  hypothesis,  or  whatever  of  doubt,  confusion,  or 
uncertainty  he  may  be  able  to  create  with  respect 
to  that  of  his  opponent,  is  permissible,  and  he  may 
present  his  own  views  with  all  the  ingenuity,  per- 
suasion, vehemence,  fervor  and  effectiveness  at  his 
command.^^ 

197.  But  it  must  be  remembered  that  the  ver- 
dict should  be  impartial  and  pronounced  upon  the 
evidence.  It  follows,  therefore,  that  the  address 
of  counsel  must  be  upon  the  evidence  and  accord- 
ing to  the  evidence.  He  must  state  the  facts  as 
they  were  developed  during  the  trial,  and  not  as  he 
may  think  they  should  have  been.  He  may  state 
them  as  forcibly  as  possible,  but  he  must  not  en- 
16  People  V.  Smith,  162  N.  Y.  531, 


122  ESSAYS    IN   LEGAL   ETHICS. 

large  them.  He  may  palliate,  but  not  distort  them. 
He  may  extenuate,  but  not  misstate.  In  no  field  of 
legal  effort  does  the  truly  great  advocate  more  con- 
spicuously appear  than  before  the  jury;  in  no  field 
is  the  chicanery  and  trickery  of  the  pettifogger  more 
clearly  displayed. 

198.  Abuse  of  the  opposite  side.  There  was 
developed  during  the  early  part  of  the  last  century 
a  class  of  advocates  that  deemed  it  the  highest 
stroke  of  policy  to  load  with  opprobrious  epithets 
and  abuse  the  counsel,  clients,  and  witnesses  on  the 
opposite  side.  This  was  practiced  not  alone  at  nisi 
prills,  but  in  the  more  dignified  forum  of  the  appel- 
late court  as  well,  and  so  widespread  and  deep- 
seated  did  this  pernicious  practice  become  that  rare- 
ly if  ever  did  it  call  forth  a  rebuke  from  the  court. 
It  is  a  matter  for  congratulation  that,  save  in  ex- 
ceptional instances,  the  practice  seems  to  have  died 
with  the  forensic  lions  (?)  that  inaugurated  it,  and, 
notwithstanding  the  few  sporadic  manifestations  of 
old-time  methods  occasionally  seen,  a  higher  and 
manlier  spirit  actuates  the  bar  of  the  country  in  their 
legal  disputations  and  debates  than  was  perceptible 
half  a  century  ago.  The  practice  originated  in  mis- 
taken and  perverted  views  of  qualities  and  effects, 
and  although  it  wore  the  semblance  of  intrepedity 
and  courage  it  was,  in  fact,  only  an  exhibition  of 
rank  cowardice. 

199.  The  young  attorney  who  thinks  he  will  at- 
tain fame  as  a  trial  lawyer  by  adopting  this  boorish 


GENERAL   PRACTICE.  123 

and  generally  discarded  practice  makes  a  grave  mis- 
take. He  may  receive  the  plaudits  of  the  ignorant 
and  uncouth,  but  he  will  excite  only  disgust  in  the 
minds  of  those  most  competent  to  judge,  and  whose 
good  opinions  it  should  be  his  constant  effort  to  ac- 
quire and  retain.  Nor  do  such  exhibitions  indicate 
the  possession  of  those  qualities  that  bring  success 
in  modern  practice.  They  are  the  devices  of  small 
and  ill-informed  minds;  the  arrogant  assertions  of 
presumptuous  self;  and  are  resorted  to  only  by  the 
boor,  the  shyster,  the  pettifogger  and  the  moral  de- 
generate. 

200.  Tampering  with  records.  The  official 
records  of  courts,  and  the  files  of  judicial  proceed- 
ings, are  so  far  invested  with  an  element  of  sanctity 
that  their  integrity  may  not  be  impaired  by  an  un- 
authorized act.  If,  through  any  cause  or  from  any 
reason,  it  becomes  proper  that  they  should  be  cor- 
rected, altered,  or  amended,  leave  therefore  must 
first  be  obtained  and  the  change  produced  under  the 
same  safeguards  that  applied  when  they  were  orig- 
inally made.  It  is  immaterial  that  the  alteration 
may  be  slight  or  inconsequential,  or  that  its  only 
effect  may  be  beneficial  to  all  parties  concerned,  for 
no  one  other  than  the  court  may  assume  to  pass 
upon  the  question. 

201.  If  this  be  true,  then  it  follows,  with  much 
stronger  reason,  that  an  attorney  may  not  tamper 
with  a  record,  file,  or  document,  in  order  to  make 
it  express  that  which  before  it  did  not,  and  thereby 


124  ESSAYS    IN    LEGAL   ETHICS. 

cause  it  to  serve  his  own  purposes  to  the  detriment 
of  his  adversary.  Such  an  act  clearly  evidences  a 
want  of  moral  sense  which  renders  him  incapable  of 
appreciating  and  discharging  the  duties  and  obli- 
gations of  a  lawyer  toward  the  public,  the  bar,  and 
the  court,  and  neither  ignorance  nor  inexperience 
can  be  urged  in  extenuation  of  such  an  offense.^''' 
Where  such  a  dereliction  of  professional  duty  is 
shown,  the  courts,  to  protect  litigants  and  maintain 
their  own  dignity,  may  summarily  discipline  the 
offender  by  striking  his  name  from  the  roll. 

202.  Abuse  of  process.  The  law  has  provid- 
ed a  regular  method  of  procedure  for  the  vindica- 
tion and  protection  of  rights.  The  courts  are  in- 
trusted with  the  administration  of  this  procedure, 
but  its  practical  application  rests  largely  with  the 
lawyers,  who,  as  the  ministers  of  justice,  are  pre- 
sumed to  adapt  it  to  the  varying  wants  of  suitors 
and  the  exigencies  of  particular  cases.  The  process 
by  which  legal  ends  are  attained  has,  in  large  meas- 
ure, been  committed  to  the  bar,  to  be  by  it  em- 
ployed for  the  legitimate  purposes  of  litigation,  and 
notwithstanding  that  the  details  of  service,  levies, 
etc.,  are  performed  by  the  executive  officers  of  the 
court  the  direction  and  control  of  such  work  still 
remains  with  the  attorney  who  is  conducting  the 
case. 

203.  But  lawful  process  may  be,  and  often  is, 
abused,  and  while  ostensibly  employed  in  the  fur- 

17  People  V.  Moutray,  166  111.  630. 


GENERAL   PRACTICE.  125 

therance  of  a  proper  purpose  may  yet  be  made  the 
means  of  working  rank  iniquity.  When  the  abuse 
is  flagrant  the  courts  will  rarely  refuse  to  relieve 
against  it,  and  in  some  cases  will  intervene  to  pun- 
ish the  offender.  Not  infrequently,  however,  while 
the  abuse  is  conceded,  courts  are  practically  power- 
less to  abate  the  evil  or  reach  the  evil-doer.  The 
question  then  resolves  itself  into  a  matter  of  pure 
ethics,  and  public  opinion,  as  in  other  ethical  af- 
firmations, is  about  the  only  force  that  can  affect  the 
parties  engaged  in  the  nefarious  transactions.  Un- 
til the  moral  sense  of  the  bar  shall  become  sufficient- 
ly strong  to  assert  a  controlling  influence  so  long 
will  the  fair  fame  of  the  profession  suffer  from  acts 
of  legalized  piracy. 

204.  The  matter  under  discussion  finds  frequent 
examples  in  connection  with  justice  courts  and  other 
tribunals  of  limited  and  inferior  jurisdiction.  Thus 
the  law  gives  to  justices  of  the  peace  a  concurrent 
jurisdiction  throughout  the  county.  This  fact  is  fre- 
quently taken  advantage  of  by  unscrupulous  practi- 
tioners to  harass  and  annoy  persons  against  whom 
they  may  have  demands,  and  process  is  issued  and 
made  returnable  at  distant  parts  of  the  county  and 
at  inconvenient  hours.  It  often  happens,  in  such 
cases,  if  the  defendant  answers  the  summons,  that 
the  plaintiff  fails  to  appear,  and  the  case  is  dis- 
missed, only  to  be  commenced  again  in  the  same 
manner,  and  is  so  continued  until  finally  a  "snap" 
judgment  is  entered  by  default.    This  is  distinctly 


126  ESSAYS   IN   LEGAL   ETHICS. 

an  abuse  of  process;  a  rank  perversion  of  the  ma- 
chinery of  the  law,  and  a  degradation  of  judicial 
functions,  but  while  it  violates  the  canons  of  ethics 
it  infracts  no  legal  rule,  and  the  remedy  therefor 
lies  only  in  the  forum  of  conscience. 

205.  Duty  to  third  persons.  The  duties  of 
an  attorney  to  his  client,  his  professional  brethren, 
and  the  court,  is  reserved  for  more  specific  treat- 
ment in  subsequent  chapters,  and  we  may  close  our 
observations  of  general  practice  by  a  cursory  view 
of  the  duties  of  an  attorney  to  third  persons  consid- 
ered not  as  constituting  the  public — society — but  as 
individuals.  It  may  be  stated  as  a  general  propo- 
sition that,  in  the  absence  of  fraud,  falsehood,  and 
collusion,  an  attorney  is  under  no  professional  ob- 
ligation or  duty  to  a  third  person.  In  some  in- 
stances distinguished  lawyers  have  contended  that 
the  rule  is  absolute  and  imperative,  without  excep- 
tion or  qualification.  Thus,  Lord  Brougham^  ^  is 
reported  to  have  said: 

206.  "An  advocate,  by  the  sacred  duty  which  he 
owes  his  client,  knows  in  the  discharge  of  that  of- 
fice but  one  person  in  the  world,  the  client  and  none 
other.  To  save  that  client  by  all  expedient  means — 
to  protect  that  client  at  all  hazards  and  cost  to  all 
others,  and  among  others  to  himself — is  the  highest 
and  most  unquestioned  of  his  duties.  He  must  not 
regard  the  alarm,  the  suffering,  the  torment,  the 
destruction  which  he  may  bring  upon  that  other." 

18  Address  on  the  trial  of  Queen  Caroline. 


GENERAL   PRACTICE.  127 

207.  But  this  extreme  view  has  never  met  the 
approbation  of  the  bar,  either  in  England  or  Amer- 
ica, and  is  repudiated  by  the  great  majority  of  rep- 
utable practitioners.  While  admitting  the  rule, 
which  is  in  every  way  just  and  reasonable,  it  must 
yet  be  held  to  apply  only  to  the  knowledge,  skill, 
care  and  diligence  of  the  attorney  with  respect  to 
the  particular  case  in  which  he  is  engaged.  To  the 
client  he  is  under  certain  obligations,  for  the  just 
fulfillment  of  which  he  is  legally  as  w^ell  as  morally 
bound.  But  to  third  persons,  where  no  privity 
exists  and  where  there  is  no  fraud  or  collusion,  he  is 
under  no  duty,  and  even  though  injury  may  result 
to  them,  through  his  negligence  or  want  of  skill, 
they  would  still  be  without  remedy  against  him.^^ 

19  Bank  v.  Ward,  100  U.  S.  195 ;  Dundee  Mtg.  Co.  v. 
Hughes,  20  Fed.  Rep.  sg. 


CHAPTER  VII. 

CRIMINAL    PRACTICE. 

Generally  considered — The  retainer — Duty  to  persons  accused — 
Knowledge  of  prisoner's  guilt — General  duties  in  de- 
fense— The  prosecution  of  criminals — Duty  of  persons 
officially  charged  with  prosecution — Propriety  of  pri- 
vate counsel  assisting  in  prosecutions — Dangers  of 
criminal  practice. 

208.  Generally  considered.  Probably  no 
topic  relating  to  legal  ethics  is  more  frequently  al- 
luded to,  or  more  generally  discussed  by  the  public, 
than  the  duty  of  an  attorney  in  defending  a  person 
charged  with  crime ;  and  probably,  also,  there  is  no 
subject  upon  which  the  public  are  more  prone  to  ar- 
rive at  superficial  and  erroneous  conclusions.  For 
many  years  it  has  furnished  a  fruitful  theme  for 
shallow-brained  declaimers  and  writers  of  moral 
homilies,  and  apparently  has  lost  none  of  its  pristine 
vigor  and  usefulness  as  an  ever  ready  and  available 
illustration  of  the  perversity  of  law  and  lawyers. 
Let  us  then  examine  this  question  for  ourselves  and 
endeavor,  if  possible,  to  ascertain  the  true  course  of 
professional  duty. 

209.  It  is  now  a  guaranteed  right  of  every  per- 
son charged  with  an  infamous  crime — ^treason  or 
felony — to  be  confronted  with  his  accusers  and  to 
be  represented  by  counsel  if  he  so  desires.    He  has 

128 


CRIMINAL   PRACTICE.  129 

a  right  to  a  fair  trial ;  that  is,  a  trial  conducted  ac- 
cording to  the  forms  which  prudence  and  experience 
have  devised  as  conducive  to  the  security  of  Hfe  and 
liberty.  As  has  been  well  said:  "These  are  the 
panoply  of  innocence,  when  unjustly  arraigned;  and 
guilt  cannot  be  deprived  of  it  without  removing  it 
from  innocence. "^^ 

210.  But  this  was  not  always  so,  and  when  we 
read  the  reports  of  some  of  the  English  state  trials 
of  former  days  and  see  the  rank  iniquity  with  which 
they  were  conducted, ^^  we  feel  that  no  language 
will  so  well  describe  their  true  nature  as  the  harsh 
term  "judicial  murder."  For  many  years  a  prisoner 
charged  with  felony  was  not  permitted  to  call  any 
witnesses  in  his  own  behalf,--  nor  was  he  permitted 
to  have  counsel,  and  when  this  latter  privilege  was 
finally  given  to  him  his  counsel  was  not  permitted 
to  address  the  jury  nor  comment  on  the  evidence, 
but  was  strictly  confined  to  advising  the  court  upon 
the  law  of  the  case.  Many  specious  reasons  for  a 
practice  so  revolting  to  our  ideas  of  justice  may  be 
found  in  the  old  books,  but  the  chief  one  seems  to 
have  been  that  the  court  was  counsel  for  the  pris- 
oner and  was  supposed  to  watch  over  and  guard  his 
interests. 

211.  It  would  seem  also  that  there  was  an  ethical 

20  Sharswood,  Legal  Ethics,  90. 

-1  The  bloody  assize  of  Jeffreys  is  only  one  of  many  ex- 
amples. 
22  4  Black.  Com.  359. 


T30  ESSAYS   IN   LEGAL   ETHICS. 

question  involved,  for  one  old  writer^^  advances  as 
a  reason  that  "our  law  doth  abhor  the  defense  and 
maintenance  of  a  bad  cause,"  and  this,  he  says,  is 
one  of  the  reasons  "why  our  law  doth  not  allow 
counsel  unto  such  as  are  indicted  of  treason,  mur- 
der, rape,  or  other  capital  crimes;  so  as  never  any 
professor  of  the  law  of  England  hath  been  known 
to  defend  (for  the  matter  of  fact)  any  traitor,  mur- 
derer, ravisher,  or  thief,  being  indicted  and  pros- 
ecuted at  the  suit  of  the  king,  *  *  *  ^nd 
therefore  it  is  an  honor  unto  our  law  that  it  doth  not 
suffer  the  professors  thereof  to  dishonor  themselves 
(as  the  advocates  in  other  countries  do)  by  de- 
fending such  offenders."  The  inherent  viciousness 
of  the  foregoing  is  seen  in  that  it  assumes  to  fix  the 
question  of  guilt,  not  upon  the  facts  to  be  proved, 
but  upon  the  character  of  the  crime  with  which  the 
accused  stands  charged.  Yet  this,  for  many  years, 
may  be  said  to  fairly  represent  the  spirit  of  the 
English  law.  From  time  to  time  slight  innovations 
were  made  upon  the  severity  of  the  rule,  but  at- 
tempts to  remedy  the  evil  by  legislation  were  long 
and  obstinately  resisted,  and  it  was  not  until  1836^^ 
that  the  last  remnant  of  this  barbarous  practice  was 
finally  swept  away. 

212.  In  the  United  States,  notwithstanding  the 
harsh  doctrines  of  the  old  law  seem  to  have  been 
applied  to  some  extent  during  the  colonial  period,  a 

23  Davy's  Reports,  Preface. 
2*6  and  7  Wm.  IV.,  c.  114. 


CRIMINAL    PRACTICE.  131 

more  wise  and  humane  policy  has  always  prevailed. 
From  the  institution  of  the  present  government  it 
has  always  been  a  cardinal  rule,  that  every  man 
charged  with  crime  shall  be  adjudged  only  on  the 
evidence  produced.  If  the  evidence  is  weak  and  in- 
conclusive, it  is  the  sworn  duty  of  the  jury  to  acquit. 
If  the  charge  itself  is  so  inartificially  framed  that  it 
will  not  sustain  a  conviction,  it  is  the  duty  of  the 
judge  to  dismiss  the  suit.  This  procedure  is  believed 
to  be  eminently  just  and  wise;  it  is  the  result  of 
time  acting  on  experience,  and  represents  the  slow 
outgrowth  of  preceding  ages  in  ideas  of  abstract 
justice. 

213.  Nor  does  such  procedure  in  any  way  mil- 
itate against  a  sound  morality,  even  though  its  ef- 
fect, in  some  cases,  may  be  to  permit  a  guilty  man 
to  escape.  It  is  the  privilege  of  the  accused  to  point 
out  deficiencies  of  indictment  or  evidence,  and,  this 
being  true,  there  can  be  no  violation  of  moral  duty 
on  the  part  of  counsel  who  assumes  to  do  this  for 
him.  The  popular  clamor,  so  often  heard,  concern- 
ing the  loopholes  in  the  meshes  of  the  law,  whereby 
criminals  go  unpunished,  is  but  the  veriest  bosh, 
and  it  is  immaterial  that  much  of  this  clamor  orig- 
inates with  men  who  assume  to  be  teachers  of 
morals.  That  our  criminal  law  is  perfect  and  our 
legal  machinery  without  defect,  no  one  asserts ;  but 
we  have  made  a  great  advance  over  the  "good  old 
days"  when  poor  and  decrepit  women  were  ruth- 


132  ESSAYS    IN    LEGAL   ETHICS. 

lessly  and  brutally  sacrificed  on  the  altar  of  justice 
by  pious  and  God-fearing  men.^^ 

214,  The  retainer.  Except  when  duly  as- 
signed by  order  of  court  to  defend  a  poor  prisoner, 
a  lawyer  is  under  no  legal  duty  to  accept  a  crim- 
inal retainer,  nor  will  he,  by  such  denial,  violate  any 
ethical  canon.  It  is  his  right  to  so  deny,  if  he  deems 
it  the  proper  course  to  pursue.  He  is  under  no  ob- 
ligation to  palliate  and  defend  iniquity  of  any  kind 
in  a  court  of  justice,  or  to  undertake  a  cause  which 
his  soul  abhors,  and  his  condition  would  be  that  of 
an  abject  and  miserable  slave  if,  as  some  would  con- 
tend, he  were  to  be  at  the  command  of  every  mis- 
creant who  might  choose  to  employ  him. 

215.  But  there  are  times  when  acceptance  seems 
a  moral  duty,  and  when  to  do  so  may  require  no 
small  degree  of  moral  courage.  If  the  offense 
charged  is  one  that  has  deeply  affected  the  commu- 
nity, creating  against  the  accused  a  strong  adverse 
feeling,  an  attorney  assumes  a  great  risk  in  accept- 
ing a  retainer  to  defend  and,  upon  more  than  one  oc- 
casion, lawyers  have  lost  both  friends  and  practice 
by  espousing  an  unpopular  cause.  In  such  a  case, 
if  the  lawyer  is  timid,  or,  to  employ  a  more  euphe- 
mistic term,  conservative,  he  will  generally  decline 

25  Even  so  perfect  a  character  as  Sir  Matthew  Hale  was 
guilty  of  this  crime,  and  condemned  to  death  two  poor  and 
innocent  women,  in  violation  of  the  plainest  rules  of  justice, 
and  against  whom  there  was  no  evidence  that  ought  to  have 
been  given  any  weight  in  the  mind  of  a  reasonable  man, 
though  he  believed  in  witchcraft. 


CRIMINAL    PRACTICE.  133 

the  retainer.  This  he  may  do  with  the  utmost  pro- 
priety. On  the  other  hand,  if  he  is  brave,  he  will  ac- 
cept, and,  whatever  the  laity  may  think  of  him,  if 
he  is  a  good  man  and  acting  from  a  sense  of  chival- 
rous duty,  he  must  surely  rise  in  the  estimation  of 
every  reputable  practitioner. 

216.  In  the  ordinary  case,  while  a  lawyer  may 
decline  a  retainer  in  the  exercise  of  his  own  discre- 
tion, he  is  equally  at  liberty  to  accept,  and  neither 
the  character  of  the  client  nor  the  nature  of  the 
charge  should  form  an  objection.  The  only  ques- 
tion is,  whether  he  is  willing  to  undertake  a  crim- 
inal defense.  Nor  should  counsel  decline  a  re- 
tainer merely  because  he  may  believe  the  accused  to 
be  guilty.  As  was  eloquently  said  by  the  great 
Erskine:  'Tf  the  advocate  refuses  to  defend  from 
what  he  may  think  of  the  charge  or  the  defense,  he 
assumes  the  character  of  the  judge,  nay,  he  as- 
sumes it  before  the  hour  of  judgment ;  and,  in  pro- 
portion to  his  rank  and  reputation,  puts  the  heavy 
influence  of  perhaps  a  mistaken  opinion  into  the 
scale  against  the  accused,  in  whose  favor  the  benev- 
olent principle  of  English  law  makes  all  presump- 
tions and  commands  the  very  judge  to  be  his  coun- 
sel."2« 

217.  Professional  duty  to  persons  accused. 
An  attorney  employed  to  defend  a  person  charged 
with  crime  is  under  a  duty  to  use  every  means,  con- 
sistent with  honesty  and  fairness,  to  secure  an  ac- 

26  Camp.  Lives  of  the  Chancellors,  Vol.  6,  p.  361. 


134  ESSAYS    IN    LEGAL   ETHICS. 

quittal  for  his  client.  If  he  beheves  him  innocent 
this,  in  itself,  will  be  a  spur  to  effort,  but  even 
though  he  may  feel  that  the  prisoner  is  guilty,  this, 
in  itself,  should  not  be  a  deterrent. 

218.  Before  trial  he  should  carefully  examine 
the  indictment  under  which  the  prisoner  is  held. 
If  it  is  defective  or  insufficient  for  any  reason  he 
should  at  once  bring  his  objection  before  the  court. 
This  is  a  clear  and  positive  duty,  and  counsel  as- 
sumes a  fearful  responsibility  if  he  knowingly  fails 
to  make  an  objection  to  the  indictment,  which,  if 
taken,  would  be  fatal  to  the  prosecution  of  the  suit. 

219.  During  the  progress  of  the  trial  he  should 
seize  every  point  the  law  allows  as  a  protection  for 
his  client,  for  that  same  law  which  the  prosecutor  is 
wielding  as  a  sword  he  has  a  right  to  employ  as  a 
shield.  He  must  insist  on  the  due  observance  of 
every  safeguard  that  the  law  has  provided,  and  if 
any  legitimate  avenue  of  escape  appears  he  betrays 
his  trust  if  he  fails  to  avail  himself  of  it. 

220.  Knowledge  of  prisoner's  guilt.  Not 
the  least  among  the  indictments  of  the  legal  profes- 
sion, found  by  the  self-constituted  conservators  of 
public  morals,  is  the  assertion  that  lawyers  have  no 
conscientious  scruples  against  defending  a  person 
charged  with  an  infamous  crime,  although  they  may 
know  him  to  be  guilty.  This,  in  the  minds  of  many, 
is  the  depth  of  professional  infamy,  and  a  lawyer 
who  will  so  far  lower  himself  as  to  accept  a  retainer 
under  such  circumstances,  or  who  will  continue  in  a 


CRIMINAL    PRACTICE.  135 

case  after  such  knowledge  has  been  brought  home 
to  him,  is  regarded  as  utterly  depraved  and  desti- 
tute of  moral  feeling.  Probably  no  phase  of  our 
general  subject  is  so  often  adverted  to  and  so  gen- 
erally condemned  as  this,  and  therefore  it  merits  our 
serious  and  candid  consideration. 

221.  Now,  it  is  a  well-known  fact  of  common 
experience  that  the  professional  moralist  is  usually 
a  very  one-sided  person  with  a  narrow  mental  hori- 
zon, and  his  disciples,  as  a  rule,  tend  to  develop  the 
same  characteristics.  The  lawyer,  notwithstanding 
his  constant  practice  of  supporting  one  side  of  an 
argument,  has  a  far  wider  range  of  mental  vision 
and  a  better  knowledge  of  applied  ethics.  While  he 
deals  with  the  law  as  it  is,  he  is  yet  conversant  with 
what  it  has  been  and  what  it  tends  to  become,  and 
his  course  is  shaped  by  the  lights  of  the  past  and  the 
future,  no  less  than  by  those  of  the  present.  He  has 
debated  this  question  long  and  earnestly.  He  has 
examined  it  in  all  its  bearings  and  with  every  aid 
that  time  and  experience  can  furnish.  As  a  result 
of  this  profound  and  careful  study  he  has  announced 
the  doctrine  that  counsel  may,  with  no  violation  of 
moral  duty,  undertake  the  defense  of  a  man  charged 
with  crime,  whom  he  believes,  or  even  knows,  to  be 
guilty. 

222,  If  counsel  has  direct  knowledge  of  the 
prisoner's  guilt,  as  where  the  accused  confesses 
same,  he  may  well  pause  before  assuming  the  de- 
fense, but  he  may,  with  the  utmost  propriety,  pro- 


136  ESSAYS    IN    LEGAL   ETHICS. 

ceed,  and  should  he  refuse  so  to  do  it  is  within  the 
power  of  the  court  to  compel  him,  as  has  been 
shown  in  another  place. 

223.  The  law,  like  charity,  "thinketh  no  evil;" 
wherefore  it  has  long  been  a  cherished  rule  that 
every  man  charged  with  crime  is  presumed  to  be 
innocent,  and  this  presumption  continues  until  the 
prosecution,  by  proof,  shall  have  established  his 
guilt  beyond  a  reasonable  doubt.  Of  this  rule  the 
advocate  is  the  intermediate  minister,  and  he  is  jus- 
tified, if  not  bound,  to  enforce  its  application  to  the 
inconclusiveness  of  the  evidence  adduced;  and  he 
may  do  this  the  more  readily  because  even  the  jury 
themselves  are  bound  to  secure  to  the  accused  the 
benefit  of  its  application. 

224.  Before  the  law  all  men  are  equal,  and 
guilty  men  have  the  same  right  to  be  defended  and 
to  be  represented  by  counsel  as  have  the  innocent. 
This  right  is  extended  to  all  in  the  furtherance  of 
public  justice,  and  is  founded  upon  the  principle 
that  no  one  shall  be  convicted  except  on  legal  and 
sufficient  evidence.  But  this  principle  also  defines 
the  scope  and  extent  of  the  advocate's  duty  in  con- 
ducting a  defense  of  this  kind.  He  is  merely  bound 
to  screen  his  client  from  conviction  on  incompetent 
and  insufficient  evidence,  and  to  use  all  fair  argu- 
ments that  may  arise  from  the  trial.  He  may  ex- 
pose the  weak  parts  of  the  evidence  against  him 
and  enlarge  on  those  parts  which  tend  to  his  favor ; 
he  may  even  exhibit,  as  fully  and  as  forcibly  as  he 


CRIMINAL    PRACTICE.  137 

can,  any  hypothesis  consistent  aHke  with  the  evi- 
dence and  the  possible  innocence  of  his  cHent.  But 
here  the  advocate  should  stop.  The  law  and  all  its 
machinery  are  means,  not  ends ;  the  purpose  of  their 
creation  is  justice;  and  he  who  in  his  zeal  for  the 
means  forgets  the  ends,  betrays  his  trust  and  dem- 
onstrates his  own  unfitness  for  his  exalted  office. 

225.  An  attorney  who  assumes  to  represent  the 
rights  of  a  person  charged  with  crime  acts  merely 
in  his  official  capacity.  The  prisoner  may  be  moral  ■ 
ly  guilty,  but  the  only  question  submitted  to  the 
jury  is  whether  he  is  legally  guilty — guilty  upon 
the  issue  tried.  The  prisoner  has  a  right  to  have  the 
evidence  against  him  fully  tested  before  it  is  relied 
upon  for  a  conviction.  To  secure  the  benefit  of  this 
right  he  must  have  counsel.  This  in  itself  is  sound 
morality,  and  its  denial  now  would  rend  the  bonds 
of  society. 

226.  It  may  happen  that  the  knowledge  of  his 
client's  guilt  only  comes  to  counsel  after  the  trial 
has  made  considerable  progress.  It  is  contended  by 
the  pseudo-moralists  that  in  such  event  the  attorney 
should  withdraw  from  the  case.  But  this  would  be 
to  break  faith  with  the  prisoner,  and  whatever  may 
be  the  views  of  the  laity  it  is  now  well  established 
by  judicial  precedent  that,  where  an  attorney  has 
taken  a  retainer  to  defend  a  prisoner  he  is  not  at 
liberty  to  withdraw  during  the  trial  merely  because 
he  discovers  that  his  client  is  guilty.  The  duty  of 
defense  remains,  and  while  the  knowledge  of  guilt 


138  ESSAYS   IN   LEGAL  ETHICS. 

may  materially  change  the  method  of  defense,  the 
duty  itself  is  unaltered.^'' 

227.  The  foregoing  remarks  apply  only  to  those 
cases  where  counsel  has  positive  knowledge  that  his 
client  is  guilty.  Mere  suspicion,  even  where  it  may 
amount  to  belief,  will  not  justify  any  relaxation  of 
effort  to  secure  an  acquittal,  for  it  will  often  happen 
that  the  most  honest  case  may  be  destitute  of  evi- 
dence to  support  it  while  all  the  known  circum- 
stances point  to  guilt.^^     Such  cases  have  occurred 

27  This  phase  of  our  subject  was  definitely  settled  during  the 
first  half  of  the  last  century,  the  principal  precedent  being  an 
English  state  trial,  now  known  as  the  Courvoisier  Case, 
which  was  heard  in  1840.     See  Appendix. 

28  Perhaps  the  most  remarkable  case  of  erroneous  convic- 
tion that  ever  came  under  the  cognizance  of  a  court  occurred 
in  our  own  country  during  the  last  century.  The  case  is  as 
follows : 

Two  brothers,  by  name  Boorn,  were  arrested  in  Vermont, 
in  the  year  1819,  charged  with  the  murder  of  one  Russel  Col- 
vin.  They  were  tried  upon  an  indictment  for  the  offense,  in 
the  Supreme  Court  of  that  state,  at  Bennington.  The  pre- 
sumption of  guilt  was  violent,  drawn  from  many  circum- 
stances proved  by  different  witnesses.  They  had  quarreled 
with  Colvin,  and  threatened  his  life.  Nay,  they  were  actually 
seen  in  violent  personal  contest  with  him,  in  a  field,  on  the  day 
of  his  disappearance.  His  disappearance  was  scarcely  noticed 
at  the  time,  for  Colvin  was  a  poor  man  ;  no  one  cared  for  him 
alive,  and  no  one  was  interested  to  prove  him  dead.  Some 
time  after,  however,  bones  were  discovered,  in  a  pit  or  natural 
hollow,  in  the  field  where  the  quarrel  had  been  witnessed, 
and  near  the  very  spot  of  the  supposed  fatal  altercation. 
These  bones  were  identified  as  "not  dissimilar"  to  such  as 
might  have  composed  the  body  of  Colvin.  In  the  same  pit 
were  also  found  a  knife  and  one  or  more  buttons,  and  the 


CRIMINAL    PRACTICE.  139 

many  times  in  the  past  and  will  occur  many  times 
in  the  future. 

228.  Prosecution  of  criminals.  Thus  far 
we  have  been  considering  our  subject  from  the  point 
of  view  of  the  defense.  Let  us  glance  at  the  other 
side.  Of  course,  persons  charged  with  criminal  of- 
fenses must  be  prosecuted  as  well  as  defended.  In 
the  old  days  this  was  practically  the  only  side  to  a 
state  trial,  and  the  record  is  not  always  creditable 
either  to  prosecutors  or  judges.  All  prosecutions, 
where  the  charge  amounts  to  a  felony,  are  conduct- 
ed by  a  public  officer — the  state's  attorney.  With 
him  there  is  no  option ;  he  must  discharge  the  duty 
he  has  sworn  to  fulfil.  But  in  the  performance  of 
this  duty  the  man  should  never  be  extinguished  in 
the  prosecutor.  His  office  demands  his  best  efforts 
in  all  cases,  but  he  is  under  no  duty  to  secure  a  con- 
viction in  any  case,  and  he  fully  discharges  all  of 
the  obligations  of  his  office  by  a  proper  and  faithful 
presentation  of  the  facts.  His  duty  is  performed, 
and  well  performed,  when  he  has  done  all  that  lies 

former  was  identified  as  having  belonged  to  Colvin ;  and  the 
latter  as  having  been  attached  to  his  garments ;  and  the  pris- 
oners actually  confessed  that  they  vi^ere  guilty  of  the  murder. 
They  w^ere  convicted  and  sentenced  to  death ;  but,  the  an- 
nals of  our  criminal  jurisprudence  are  not  stained  with  the 
crime  of  judicial  murder  by  the  execution  of  that  sentence; 
for  Russel  Colvin  was  all  this  while  alive — was  discovered 
as  a  farm  laborer  in  New  Jersey,  whither  he  had  wandered 
after  his  altercation  with  the  Booms,  which  they  really  sup- 
posed had  resulted  in  his  death.  He  was  brought  back  in 
season  to  save  the  lives  of  the  convicts. 


I40  ESSAYS    IN    LEGAL   ETHICS. 

in  his  power  to  bring  out  the  truth  of  the  issue  in  ac- 
cordance with  estabhshed  rules  of  evidence.  If  the 
evidence  tends  to  incriminate  he  has  a  right,  and  it 
is  his  duty,  to  make  all  proper  arguments  thereon 
to  the  jury;  on  the  other  hand,  if  the  evidence  is 
weak,  or  tends  to  demonstrate  innocence,  he  com- 
mits a  grave  error  in  urging  a  conviction. 

229.  Too  many  prosecutors  seem  to  think  that 
their  employment  demands  a  conviction,  and  their 
attitude  and  bearing  during  the  trial  shows  that  the 
object  is  not  simply  to  bring  out  the  truth  of  the 
matter  but  to  convict.  In  many  counties  where  the 
fee  system  still  obtains  the  public  prosecutor  is  al- 
lowed a  certain  fee  for  conviction,^^  and  too  often 
the  prospect  of  that  fee  is  the  one  stimulating  in- 
centive that  urges  him  on.  The  public  prosecutor 
is  an  officer  of  the  state.  The  state  has  said  that 
no  presumptions  of  guilt  shall  be  raised  against  the 
accused  and  that  he  shall  be  fairly  and  impartially 
tried.  Therefore,  the  state's  attorney  has  no  right 
to  bring  to  a  state  trial  any  personal  animus  against 
the  prisoner,  nor  should  he,  any  more  than  any 
other  citizen,  be  permitted  to  regard  the  accused  as 
otherwise  than  innocent  until  he  has  been  pro- 
nounced guilty  by  the  jury. 

230.  On  the  other  hand,  the  mere  fact  that  a 
prosecutor  may  believe  an  accused  person  to  be  in- 
nocent gives  him  no  right  to  slight  his  duty,  for, 

-^  This  is  also  one  of  the  grave  defects  of  the  Federal  sys- 
tem of  criminal  procedure. 


CRIMINAL    PRACTICE.  141 

notwithstanding  his  behef,  the  prisoner  may  yet  be 
guilty.  Where  a  person  has  been  held  to  answer 
a  criminal  charge  it  devolves  upon  the  state's  at- 
torney to  duly  prosecute  such  charge  regardless  of 
his  personal  views.  Whatever  evidence  he  may 
have  should  be  properly  presented  and  whatever  of 
fair  argument  may  arise  thereon  should  be  made.  It 
is  for  the  jury  to  pass  upon  the  question  of  guilt, 
not  the  prosecuting  officer. 

231.  The  same  pseudo-moralists  that  so  loudly 
condemn  attorneys  for  defending  persons  whom 
they  know  or  have  reason  to  believe  are  guilty, 
are  equally  emphatic  in  their  denunciation  of  pros- 
ecuting officers  who  insist  on  "persecuting"  those 
whom  they  believe  to  be  not  guilty,  and  it  is  often 
asserted  that  a  state's  attorney  is  under  a  moral 
duty  to  enter  a  nolle  prosequi  whenever  he  is  satis- 
fied that  a  prisoner  is  innocent  of  the  charge  pre- 
ferred against  him.  Nothing  could  be  more  perni- 
cious or  misleading.  The  prosecutor  is  under  a 
legal  as  well  as  a  moral  duty  to  perform  the  func- 
tions of  his  office,  and  he  commits  a  gross  breach  of 
his  trust  if  he  assumes  to  use  the  opportunities  of 
his  office  to  prevent  accused  persons  from  being 
tried.  What  his  belief  may  be  is  wholly  immate- 
rial, and  while  it  is  true  that  he  may,  under  certain 
circumstances,  enter  a  nolle  pros.,  yet  this  is  done, 
not  because  of  his  belief  in  the  innocence  of  the  ac- 
cused, but  as  a  measure  of  public  policy  and  for  the 
purpose  of  saving  the  public  money,  in  cases  where 


142  ESSAYS    IN    LEGAL   ETHICS. 

it  becomes  evident  that  the  accused  cannot  be  con- 
victed. In  such  a  proceeding  the  guilt  or  innocence 
of  the  prisoner  is  immaterial. 

22^2.  Private  counsel  in  criminal  prose- 
cutions. It  not  infrequently  happens  that  private 
counsel  are  employed  to  assist  the  state.  This  is 
now  generally  regarded  as  an  allowable  practice,  but 
for  many  years  an  attorney  accepting  such  a  re- 
tainer, particularly  when  his  fee  was  paid  by  pri- 
vate parties,  was  considered  as  having  violated  an 
ethical  canon  of  the  profession.  This  was  always 
the  case  when  the  charge  involved  a  capital  crime. 
"Never  take  blood  money,"  say  the  old  writers,^^ 
and  if  we  are  to  credit  the  biographies  of  the  an- 
cient worthies  they  never  did.  In  fact,  the  old 
Ciceronian  idea  seems  at  one  time  to  have  thorough- 
ly pervaded  the  bar,  and  numerous  admonitions 
have  come  down  to  us  that  where  life  or  death  is 
the  issue,  "it  is  always  more  honorable  to  defend 
than  to  prosecute."  But  this  idea  seems  to  have  been 
denied  effect  in  later  years,  and  the  mere  fact  of 
such  employment  will  not,  as  a  rule,  cast  unfavor- 
able imputation  upon  the  character  of  the  advocate. 

233.  There  is,  however,  a  wide  difference  be- 
tween the  functions  of  the  public  officer  and  the  pri- 
vate counselor.  The  former  must,  as  a  part  of  his 
official  duty,  duly  prosecute  all  persons  who  have 
been  presented  by  the  grand  jury  or  otherwise  held 
to  await    trial    on  a  criminal  charge;    the  latter  is 

30  Brown's,  Forum,  Vol.  2,  p.  40. 


CRIMINAL    PRACTICE.  143 

under  no  duty  whatever,  and  if  he  appears  it  is  en-» 
tirely  a  matter  of  his  own  voHtion.  Therefore, 
while  an  attorney  may  be  permitted  to  assist  in  a 
prosecution,  it  is  yet  a  privilege  that  he  should  ex- 
ercise with  the  utmost  caution  and  circumspection, 
and  never,  under  any  circumstances,  should  he  con- 
sent to  aid  in  the  conviction  of  one  whom  he  knows 
or  believes  to  be  innocent.  If  he  represents  private 
interests,  it  has  been  held  in  some  states,  he  cannot 
be  retained  to  assist  in  criminal  prosecutions  grow- 
ing out  of  such  interests,^^  and  the  rule  seems  to  be 
eminently  salutary  and  just. 

234.  But,  in  any  event,  such  retainers  should 
be  accepted  with  reluctance  and  only  in  extraordi- 
nary cases,  where  peculiar  circumstances  seem  to 
justify  the  act.  There  is  something  revolting  to  the 
moral  sense  in  the  spectacle  of  counsel  selling  his 
talents  to  enable  an  individual  to  satisfy  his  thirst 
for  vengeance,  and  this,  in  most  cases,  is  just  what 
counsel  does  when  he  accepts  a  private  retainer  to 
assist  the  prosecuting  officer.  In  no  case  can  coun- 
sel insist  on  entering  a  state  trial  on  behalf  of  the 
people,  and  he  is  admitted,  if  at  all,  only  as  an  act 
of  grace  on  the  part  of  the  state's  attorney. 

235.  Criminal  law  as  a  specialty.  For 
many  young  lawyers  the  criminal  courts  seem  to 
possess  an  overwhelming  fascination.  This  is  due, 
in  large  measure,  to  the  notoriety  that  usually  at- 
tends criminal  trials,  the  opportunities  which  such 

31  See,  People  v.  Hurst,  41  Mich.  328. 


144  ESSAYS    IN    LEGAL   ETHICS. 

trials  afford  for  the  display  of  forensic  eloquence, 
and  the  prominence  into  which  the  attorneys  con- 
ducting same  are  frequently  thrust.  Hence  it  is, 
that  many  young  and  ambitious  advocates  are  at- 
tracted to  the  criminal  courts  and  after  a  brief  ex- 
perience therein  conclude  to  devote  themselves  to 
this  branch  of  the  law  as  a  specialty.  There  is  no 
legal  objection  to  this  course.  Criminal  practice  is 
a  legitimate  and  necessary  function  of  the  advocate, 
and  every  man,  as  before  remarked,  has  a  right  to 
select  his  occupation  in  life. 

236.  There  are,  however,  many  moral  objec- 
tions that  may  be  urged.  The  criminal  lawyer  par 
excellence,  the  "eminent  counsel"  of  the  newspaper 
report,  the  lawyer  of  extensive  fame,  is  almost  in- 
variably the  defender,  not  the  prosecutor,  of  crim- 
inals. His  services  are  sought  and  secured  by  hard- 
ened guilt  as  well  as  hapless  innocence,  and  his  en- 
tire professional  life  is  passed  in  close  contact  with 
malefactors  of  all  kinds.  We  are  assured  by  a  high 
authority  that  "a  man  cannot  handle  pitch  and 
not  be  defiled,"  and  we  may  say,  with  equal  cer- 
tainty, that  a  man  cannot  continually  stand  as  an 
apologist  for  crime  and  a  defender  of  criminals 
without  having  his  own  moral  sensibilities  sadly 
blunted.  There  exists  no  necessity  in  any  communi- 
ty for  a  criminal  bar,  and  the  lawyer  who  volun- 
tarily devotes  his  talents  and  learning  to  this  one 
branch  of  the  law  commits  a  great  and  ofttimes  ir- 
reparable mistake. 


CHAPTER  VIII. 

RELATIONS    WITH    CLIENT. 

General  observations — The  relation  of  attorney  and  client — 
Attorney's  authority,  powers  and  duties — Liabilities 
and  disabilities  of  the  relation — Professional  opinions 
and  advice — Refusal  of  retainer — Conduct  of  cases — 
Representing  both  sides — Privileged  communications — 
Adverse  employment  —  Withdrawals  —  Inconsistent 
positions — Money  lost  by  attorney  or  detained  by  him — 
Right  of  client  to  discharge  his  attorney. 

237.  General  observations.  Thus  far  we 
have  been  discussing  the  general  phases  of  profes- 
sional conduct  and  the  duties  of  counsel  in  practice. 
In  this  and  the  two  succeeding  chapters  it  is  pro- 
posed to  examine  a  few  of  the  salient  features  of  our 
subject  that  are  presented  in  the  relations  sustained 
by  an  attorney  to  the  client,  the  court  and  the  bar. 
As  coming  first  in  order,  the  present  chapter  will 
be  devoted  to  the  client,  for  without  the  clients 
there  would  be  little  room  for  courts  and  none  what- 
ever for  the  bar.  The  relation  of  attorney  and 
client  comprehends  many  legal  as  well  as  ethical 
rules,  but  these  will  not  be  touched  except  as  they 
are  incidentally  involved,  and  then  only  in  a  desul- 
tory manner.  To  guard  against  repetition  no  ef- 
fort will  be  made  to  go  over  ground  already  trav- 
ersed, and  to  avoid  prolixity  the  discussions  will  be 
confined  to  general  and  broadly  stated  propositions. 

145 


146  ESSAYS    IN    LEGAL   ETHICS. 

238.  The  relation.  An  attorney  is  essential- 
ly an  agent.  In  fact,  this  is  what  the  word  "attor- 
ney" means,  and  the  general  principles  which  con- 
trol in  matters  of  agency  are  all  applicable  to  attor- 
neys. The  special  undertaking  of  an  attorney  is  to 
establish  or  protect  the  rights  of  his  client,  whether 
relating  to  life,  liberty,  person,  reputation  or  prop- 
erty. This  necessarily  creates  a  relation  of  trust 
and  confidence  between  them  which  measures  and 
defines  the  extent  of  the  attorney's  duty. 

239.  It  was  formerly  held  that  to  establish  the 
relation  of  attorney  and  client  a  retaining  fee  must 
have  been  paid,  but  the  modern  doctrine  is  that, 
while  such  payment  is  the  most  usual  and  weighty 
item  to  evidence  the  relation,  it  is  by  no  means  in- 
dispensable. The  essential  feature  of  the  profession- 
al relation  is  the  fact  of  employment  to  do  some- 
thing in  the  client's  behalf.  It  is  still  held,  in  some 
states,  that  there  must  be  an  agreement,  express  or 
implied,  for  compensation,  but  whether  payment  is 
made  in  part  or  in  whole  by  retainer  in  advance  is 
not  material.  Nor  is  it  necessary  that  the  liability 
for  the  compensation  should  be  assumed  by  the 
client,  although  ordinarily  it  would  be  from  the  na- 
ture of  the  employment,  which,  in  the  vast  majority 
of  cases,  involves  the  protection  or  enforcement  of 
the  client's  interests  against  adverse  claims.^^ 

240.  In  general,  however,  the  fact  of  employ- 
ment is  sufficient  to  constitute    the    relation,  and 

33Lawall  V.  Groman,  180  Pa.  St.  532. 


RELATIONS   WITH    CLIENT.  147 

when  such  relation  has  once  been  properly  created 
it  continues  until  dissolved  by  the  express  act  of  the 
parties.  During  the  continuation  of  the  relation  the 
attorney,  for  most  purposes,  stands  in  the  place  of 
the  client,  who  will  be  bound  by  whatever  the  at- 
torney may  do  or  say,  in  the  regular  course  of  prac- 
tice, in  the  conduct  of  the  cause.^^ 

241.  Attorney's  authority,  powers,  and 
DUTIES.  The  relation  of  attorney  and  client  neces- 
sarily implies  an  authority  on  the  part  of  the  attor- 
ney to  enforce  his  client's  demands  and  to  bind  him 
as  a  party  litigant  in  all  matters  relating  to  the  suit 
or  special  transaction,  and  persons  dealing  with  the 
attorney,  in  respect  to  his  client's  business,  may 
justly  infer  that  he  has  all  the  powers  implied  by 
such  relation.  Thus,  he  may  employ  all  proper 
means  to  recover  upon  any  claim  that  is  placed  in 
his  hands,  and  if  he  obtains  a  judgment  his  author- 
ity continues  in  force  until  the  judgment  is  satis- 
fied. Therefore,  he  may  pursue  all  lawful  means  to 
enforce  such  satisfaction,^^  as  well  as  to  protect  the 
judgment  if  assailed  in  the  same  proceeding.^''  He 
is  further  authorized  to  receive  payment  of  a  judg- 
ment which  he  has  obtained  for  his  client,  and  such 
payment  will  bind  the  client  as  a  satisfaction.^'^ 

3*  Beck  V.  Bellamy,  93  N.  C.  129. 

35  White  V.  Johnson,  67  Me.  287 ;  Ward  v.  Roy,  69  N.  Y. 
96. 

^^  Sheldon  v.  Riesedorph,  23  Minn.  518. 

3'  Frazier  v.  Parks,  56  Ala.  2'^3 ;  White  v.  Johnson,  67 
Me.  287. 


148  ESSAYS    IN    LEGAL   ETHICS. 

242.  But,  with  the  foregoing  exceptions,  the 
general  powers  of  an  attorney  cease  with  the  entry 
of  final  judgment,^^  and  while  he  may  collect  the 
amount  of  the  judgment  when  the  same  is  for 
money  only,"^  he  has  no  authority  to  accept  in  sat- 
isfaction a  less  sum  than  that  specifically  recov- 
ered ;^°  nor  has  he  any  authority,  on  payment  of 
the  full  sum,  to  transfer  or  assign  such  judgment 
to  another.^^ 

243.  For  any  act  in  excess  of  his  general  powers 
the  attorney  must  have  received  a  special  authority 
to  justify  his  own  conduct  and  to  render  such  act 
binding  upon  the  client.  Thus,  in  the  absence  of  a 
special  direction,  he  has  no  authority  to  compromise 
or  surrender  any  right  of  his  client,^^  neither  can  he 
delegate  to  another  any  of  his  own  implied  powers.^^ 
The  authority  conferred  by  the  ordinary  employ- 
ment of  an  attorney  does  not  extend  to  confessing 
or  even  consenting  to  a  judgment  against  his 
client,'*'*  nor  to  compromising  the  amount  of  his 

38  Mayer  v.  Blease,  4  Rich.  (S.  C.)  10;  Hillegass  v.  Ben- 
der, 78  Ind.  225. 

30  Conway  County  v.  Ry.  Co.  39  Ark.  50. 

*o  Robinson  v.  Murphy,  69  Ala.  543 ;  Roberts  v.  Nelson,  22 
Mo.  App.  28. 

■*!  Mayer  v.  Blease,  4  Rich.  (S.  C.)  10;  Robinson  v.  Mur- 
phy, 69  Ala.  543. 

*2  Wadhams  v.  Gay,  T},  111.  415 ;  Walden  v.  Bolton,  55  Mo. 
405;   Marbourg  v.  Smith,  11  Kan.  554. 

■*3  Dickson  v.  Wright,  52  Miss.  585 ;  Wadhams  v.  Gay,  Ti 
111.  415;   Phillips  V.  Dobbins,  56  Ga.   617. 

*^  Edwards  v.  Edwards,  29  La.  Ann.  597 ;  Pfister  v.,  Wade, 
69  Cal.  133. 


RELATIONS    WITH    CLIENT.  I49 

claim/^  or  altering  the  terms  of  the  contract  or  de- 
mand.^^  Nor  will  such  employment  imply  authority 
to  receive  anything  except  money  in  satisfaction  of 
the  client's  demand,'*^  or  to  release  any  of  defend- 
ant's property  from  the  lien  of  the  judgment  which 
he  obtains.^^ 

244.  But  while  an  attorney  has  no  general  im- 
plied powers  to  discharge  his  client's  judgment  by 
receiving  a  less  amount  than  the  recovery,  or  by 
taking  anything  other  than  money  in  satisfaction, 
yet  he  may  do  so  under  a  special  authorization. 
Thus,  where  the  claim  is  desperate  and  execution 
has  been  returned  unsatisfied,  and  the  client  express- 
ly directs  the  attorney  to  take  a  less  sum  or  gives 
him  a  discretion  to  "do  the  best  he  can,"  as  is  very 
often  the  case,  the  attorney  may  settle  on  any  terms 
that  to  him  may  seem  advantageous,  and  the  client 
will  be  bound  by  such  settlement.^® 

245.  Liability  for  want  of  skill.  It  has 
been  judicially  determined  that  when  a  person 
adopts  the  profession  of  law,  and  assumes  to  exer- 
cise its  duties  in  behalf  of  another,  for  hire  and  re- 
ward, he  impliedly  represents  that  he  possesses  the 

*5  Wetherbee  v.  Fitch,  117  111.  67;  Maddux  v.  Bevan,  39 
Md.  485. 

^'''  Pickett  V.  Bank,  32  Ark.  346 ;  Mandeville  v.  Reynolds, 
68  N.  Y.  528 ;  Bigler  v.  Toy,  68  Iowa  687. 

t^  Wiley  V.  Mahood,  10  W.  Va.  206;  Bigler  v.  Toy,  68 
Iowa  687;  Kelly  v.  Wright,  65  Wis.  236. 

"8  Phillips   V.  Dobbins,  56  Ga.  617. 

«  See,  Vickery  v.  McClellan,  61  111.  311. 


ISO  ESSAYS    IN    LEGAL   ETHICS. 

requisite  knowledge  and  skill  to  properly  conduct 
the  matter  for  which  he  is  engaged,  and  in  his  un- 
dertaking he  will  be  held  to  employ  a  reasonable 
degree  of  both.  If  injury  results  to  the  client  for 
want  of  such  degree  of  reasonable  care  and  skill  the 
attorney  must  respond  in  damages  to  the  extent  of 
the  injury  sustained.^^ 

246.  It  must  not  be  understood,  however,  that 
an  attorney,  by  accepting  a  retainer,  thereby  im- 
pliedly promises  a  perfect  legal  knowledge  with 
respect  to  the  subject-matter  of  his  employment, 
nor  that  he  will  bring  to  it  the  highest  degree  of 
skill.  The  law  recognizes  the  frailties  and  imper- 
fections of  human  nature  in  lawyers  as  well  as  in 
others,  and  therefore  exacts  no  more  from  them 
than  from  the  laity.  It  requires  that  one  who  as- 
sumes to  practice  law  shall  possess  the  ordinary 
legal  knowledge  and  skill  common  to  members  of 
the  profession,  and  insists  that,  in  the  discharge  of 
the  duties  involved,  he  will  be  ordinarily  and  reason- 
ably diligent,  careful,  and  prudent.^^ 

247.  But,  while  this  is  the  extent  of  legal  re- 
sponsibility, it  is  yet  contended  by  some  writers 
that  the  field  of  moral  responsibility  is  wider.^^  An 
analysis  of  their  views,  however,  does  not  seem  to 
justify  their  conclusions,  and  it  may  safely  be  said 

50  Stevens  v.  Walker,  55  111.  151. 

51  Wharton,  Negligence,  749;  Shear.  &  Redf.  Negligence, 
211;  Wells,  Attorneys,  285;  Gambert  v.  Hart,  44  Gal.  542; 
Skillen  v.  Wallace,  36  Ind.  319. 

52  Sharswood,  Legal  Ethics,  T]. 


RELATIONS   WITH    CLIENT.  151 

that  counsel  discharges  his  moral  as  well  as  legal 
duty  when  he  brings  to  a  case  his  best  learning,  abil- 
ity and  skill.^^  As  a  rule,  he  is  not  liable  for  errors 
of  judgment,  particularly  with  respect  to  matters  of 
doubtful  construction,  but  is  presumed  to  know  the 
law  where  it  is  clear  and  unequivocal.  It  would 
seem  that  the  only  ethical  question  arises  out  of  the 
attorney's  consciousness  of  his  own  failings  and 
shortcomings.  If  he  knows  that  his  knowledge  of 
the  special  matter  is  insujfficient,  or  feels  that  he  does 
not  possess  the  degree  of  skill  that  may  be  necessary 
to  insure  successful  results,  he  commits  a  grave 
wrong  when  he  undertakes  an  employment  thus  be- 
yond his  ability.  Under  such  circumstances  he 
should  have  the  moral  courage  to  request  associate 
counsel,  or,  if  necessary,  to  decline  the  employment. 

248.  It  is  not  meant,  however,  that  counsel 
should  ever  stand  timid  and  vacillating,  with  doubts 
of  his  own  ability.  It  may  be  that  the  special  mat- 
ter presented  opens  a  new  and  wholly  untried  field, 
and  yet  he  may  with  propriety  enter  same.  If  he 
has  a  confidence  in  himself,  in  his  own  powers  of 
intellect  and  endurance,  then,  notwithstanding  the 
formidable  appearance  of  the  case,  he  may  yet  un- 
dertake it.  If,  on  closer  inspection,  he  finds  obsta- 
cles that  he  feels  he  cannot  surmount,  or  difificulties 
he  cannot  overcome,  no  false  pride  should  deter  him 
from  asking  for  aid. 

249.  It  is  better  in  all  matters  of  expediency  to 
53  Gilbert  v.  Williams,  8  Mass.  57. 


152  ESSAYS    IN   LEGAL   ETHICS. 

follow  the  instructions  of  the  client,  even  though 
they  may  not  coincide  with  counsel's  own  views.  If 
failure  or  loss  ensues  it  is  then  easy  to  fix  the  re- 
sponsibility. On  the  other  hand,  should  the  instruc- 
tions of  the  client  be  disregarded,  and  counsel  pro- 
ceed to  act  on  his  views  and  according  to  his  own 
opinions,  notwithstanding  he  may  be  under  the 
honest  impression  that  he  would  best  promote  the 
interests  of  his  client  by  such  a  course,  if  loss  occurs 
he  is  both  morally  and  legally  liable  therefor.  In 
all  cases  counsel  should  advise  his  client  to  the  best 
of  his  judgment,  but  if  the  client,  as  is  not  infre- 
quently the  case,  refuses  to  follow  the  advice,  it  is 
safer  for  counsel  to  follow  the  client's  directions.^* 

250.  Services  of  firm.  It  has  been  judicially 
held  that  the  several  members  of  a  law  firm  consti- 
tute but  one  person  in  law,  and  that  the  act  of  one, 
in  the  partnership  business,  is  the  act  of  all.^' 
Hence  it  would  seem  that  while  a  client  is  entitled 
to  the  personal  services  of  the  attorney  he  retains, 
yet,  if  he  retains  a  firm  either  member  can  perform 
the  service;  or,  if  assented  to  by  the  client,  it  may  be 
performed,  under  their  direction,  by  a  person  in 
their  employ.^ ^ 

251.  Disabilities  of  the  relation.  As  we 
have  seen,  the  relation  existing  between  attorney 
and  client  is  essentially  one  of  confidence  and  trust. 

s*  Nave  v.  Baird.  12  Ind.  318. 

55  Green  v.  Milbank.  3  Abb.  N.  Gas.  (N.  Y.)  138. 

68  Eggleston  v.  Boardman,  yj  Mich.  14. 


RELATIONS    WITH    CLIENT.  153 

To  a  large  extent  the  interests  and  rights  of  the 
client  pass  under  the  guardianship  and  control  of 
the  attorney,  and,  for  this  reason,  he  is  not  only  held 
to  the  highest  degree  of  good  faith  in  all  his  trans- 
actions with  the  client  but  is  disabled  from  doing 
many  things  that  he  otherwise  might.  In  a  former 
part  of  this  work^'''  it  was  shown  that,  in  contem- 
plation of  law,  the  client  is  very  much  under  the  in- 
fluence of  his  attorney,  and  hence  the  conduct  and 
acts  of  the  latter  are  subject  to  close  scrutiny.  Thus, 
if  the  attorney  bargains  with  the  client,  while  the 
relation  exists,  and  thereby  secures  an  advantage, 
the  law,  in  many  instances,  will  attribute  this  result 
tc  the  use  made  of  his  undue  influence  and  will  strip 
him  of  the  advantage  thus  gained  by  setting  the 
transaction  aside.^* 

252.  This  is  a  wide  departure  from  the  rules 
which  regulate  the  ordinary  transactions  of  men  in 
other  walks  of  life.  Usually  courts  will  not  inquire 
into  contracts  for  the  purpose  of  ascertaining 
whether  they  are  beneficial  or  otherwise,  but  will 
permit  parties  to  retain  the  fruits  of  their  own  wis- 
dom, sagacity,  or  experience.  But  in  the  relation 
of  attorney  and  client  we  find  a  reversal  of  many 
of  the  best  settled  rules  of  law  with  respect  to  con- 
tractual freedom  and  the  application  of  a  rule  of 
rigid  morality  that  practically  precludes  the  attor- 

^■^  See  Sec.  127,  ante. 

58  Zeigler  v.  Hughes,  55  111.  288 ;  Haight  v.  Moore,  ^7  N. 
Y.  Sup.  Ct.  161;  McMahan  v.  Smith,  6  Heisk  (Tenn.)  167. 


154  ESSAYS   IN   LEGAL  ETHICS. 

ney  from  assuming  any  position  toward  the  client 
other  than  that  of  a  disinterested  and  judicious  ad- 
viser. 

253.  It  is  better,  therefore,  so  long  as  the  rela- 
tion exists,  that  the  attorney  refrain  from  any 
dealings  with  the  client,  and  certainly  from  any 
dealings  with  respect  to  the  subject-matter  of  the 
litigation,  for  while  the  transaction  may  be  fair  and 
honorable,  and  while  the  client  may  not,  in  fact, 
have  been  swayed  by  the  relation,  yet,  in  such  cases, 
all  presumptions  are  in  favor  of  the  client  and 
against  the  propriety  of  the  proceeding. 

254.  It  is  not  contended  that  an  attorney  may 
not,  under  any  circumstances,  enter  into  business 
transactions  with  his  client.  But,  as  a  general  prop- 
osition, they  should  be  avoided.  The  rule  is  well  es- 
tablished that  whenever  a  contract  between  attorney 
and  client  inures  to  the  benefit  or  advantage  of  the 
attorney  the  court  will  not  only  scrutinize  closely 
but  will  actually  change  the  ordinary  rules  of  evi- 
dence to  arrive  at  a  determination.  In  such  cases 
a  presumption  of  bad  faith  is  raised,  which  the  at- 
torney is  obliged  to  overcome,  and  the  burden  of 
proof  is  cast  upon  him  to  show,  by  extrinsic  evi- 
dence, that  all  was  fair  and  just;  that  the  client 
acted  understandingly  and  with  a  full  knowledge  of 
all  the  facts  connected  with  the  transaction  and  was 
properly  advised  upon  the  law  relating  thereto.^^ 

58  Whipple  V.  Barton,  63  N.  H.  613 ;  Tancre  v.  Reynolds, 
35  Minn.  476. 


RELATIONS    WITH    CLIENT.  155 

255.  Professional  opinions  and  advice.  It 
goes  without  saying  that  when  a  lawyer  is  consult- 
ed, in  his  official  capacity,  his  opinions  should  be  sin- 
cere and  his  advice  honest.  Upon  this  point  there 
can  be  no  question.  It  is  the  experience  of  most 
lawyers,  however,  that  clients  do  not  always  seek 
legal  advice  with  the  purest  of  motives,  and  not  in- 
frequently this  is  apparent  to  the  attorney  even 
though  it  be  denied  by  the  client.  Now  here  there  is 
room  for  question,  and  a  very  serious  one.  Our 
captious  critics  assert  that  a  lawyer  is  always  ready 
to  sell  his  opinion  for  money.  This  we  must  admit ; 
it  is  for  this  that  we  are  lawyers.  They  further 
assert  that  it  is  immaterial  to  the  lawyer  whether 
the  opinion  is  to  be  used  for  good  or  bad  purposes. 
This  also  we  must  admit;  the  reasons  therefor  ap- 
pearing further  on.  They  go  a  step  farther,  and 
say  if  his  fee  is  paid  the  lawyer  has  no  compunc- 
tions in  aiding  and  advising  iniquity.  To  this  we 
may  enter  an  unqualified  denial. 

256.  Let  us  examine  this  matter  a  little  more 
closely.  A  client  comes  to  his  attorney  for  legal 
advice  in  respect  of  something  that  does  not  com- 
mend itself  to  the  moral  sense.  May  the  attofney, 
after  inviting  the  confidence  of  the  client,  refuse  to 
advise  him?  No!  decidedly,  No!  He  might  have 
refused  to  see  him  in  the  first  instance,  but,  having 
admitted  him  and  heard  his  plaint,  his  duty  compels 
a  response.  He  must  advise  him;  he  must  advise 
him  honestly.     How  shall  this  be  done,  and  what, 


156  ESSAYS    IN    LEGAL    ETHICS. 

under  such  circumstances,  would  be  honest  advice? 

257.  It  has  been  said  that  when  a  lawyer  is 
asked  for  his  opinion  upon  a  purely  legal  question 
his  duty  is  discharged  by  stating  the  law  as  it  is. 
But  frequently  the  client  seeks  more.  He  desires 
advice  not  only  with  respect  to  present  conditions 
but  also  concerning  future  conduct  What  should 
be  the  attorney's  attitude  in  such  a  case?  Has  he  a 
right  to  sit  as  a  judge  of  the  moral  quality  of  the 
client's  actions?  Surely,  we  must  also  answer  this 
question  in  the  negative.  Therefore,  if  the  client 
desires  to  know  what  course  the  law  requires  under 
particular  circumstances,  it  is  the  duty  of  the  legal 
adviser  to  explain  it.  But  here  his  duty  ends.  He 
is  under  no  obligation  to  further  the  unjust  schemes 
of  the  client,  and  should  refuse  to  become  a  party  to 
them.  It  has  been  urged  that  the  attorney,  on  such 
occasions,  should  take  advantage  of  the  opportunity 
to  deliver  to  the  client  a  moral  lecture.  The  attorney 
should  do  nothing  of  the  kind.  He  was  consulted  as 
a  lawyer,  not  a  moralist.  His  opinion  was  sought 
on  a  question  of  law,  not  morals,  and  the  expe- 
rience of  the  writer  is  that  attempts  of  this  kind  on 
the  part  of  the  lawyer  are  generally  hotly  resented 
by  the  client.  If  he  so  desires  he  may  show  the 
client  the  iniquity  of  the  scheme  as  a  reason  for  de- 
clining to  actively  assist  him,  but  this  is  enough. 

258.  Advising  commission  of  crime.  Where 
counsel  is  applied  to  for  advice  with  respect  to  any 
matter  of  legal  cognizance  he  may  state  the  law  as 


RELATIONS    WITH    CLIENT.  157 

it  is  and  the  consequences  that  would  follow  its  in- 
fraction, and,  with  respect  to  the  facts  of  the  partic- 
ular case,  may  advise  as  to  what  may  or  may  not 
be  done.  This  is  strictly  within  the  sphere  of  pro- 
fessional duty,  and  the  intent  that  may  have  prompt- 
ed the  inquiry  on  the  part  of  the  client  is  imma- 
terial. But  no  lawyer  has  the  right,  in  the  discharge 
of  professional  duties,  to  involve  his  client  by  his 
advice  in  a  violation  of  law;  and  he  becomes  im- 
plicated in  his  client's  guilt,  when,  by  following  his 
advice,  a  crime  against  the  laws  of  the  state  is  com- 
mitted. The  fact  that  he  acts  in  the  capacity  and 
under  the  privileges  of  counsel  does  not  exonerate 
him  from  the  well-founded  legal  principle  which 
renders  all  persons  who  advise  or  direct  the  com- 
mission of  crime  guilty  of  the  crime  committed  by 
compliance  with  the  advice  or  in  conformity  wdth 
the  direction  which  may  be  given.^^ 

259.  Refusing  a  retainer.  It  is  asserted  by 
some  writers  that  a  lawyer  is  not  at  liberty  to  refuse 
his  services  to  any  person  who  may  apply.  This  is 
one  of  the  old  medieval  notions,  which  grew  out  of 
the  organization  of  the  early  order  of  advocates. 
But  this  rule,  if  indeed  it  ever  was  a  rule,  has  long 
been  abrogated,  so  far,  at  least,  as  respects  civil 
causes.  Notwithstanding  that  counsel  is  an  officer 
of  the  court,  and  may  in  a  proper  case  be  compelled 
to  appear  for  a  person  arraigned  at  the  bar  of  such 
court,  yet  his  relation  with  the  client  is  generally 

•0  Goodenough  v.  Spencer,  46  How.  Pr.  (N.  Y.)  347. 


158  ESSAYS   IN   LEGAL   ETHICS. 

one  of  employment.  This  employment  he  is  at  lib- 
erty to  refuse  for  any  reason,  or  even  for  no  reason, 
and  there  will  occasionally  be  cases  presented  where 
the  dictates  of  a  sound  morality  will  compel  such 
refusal. 

260.  One  of  the  accusations  frequently  brought 
against  members  of  the  bar  is  their  alleged  indif- 
ference to  the  moral  aspects  of  the  causes  they  advo- 
cate. Of  course,  much  of  this  complaint  is  but 
hypocritical  cant,  drawn  from  the  overwrought 
imaginations  of  the  writers  of  distempered  romances 
or  the  super-sensitive  souls  of  pulpiteers,  yet  it  must 
be  admitted  that  individual  cases  do  at  times  fur- 
nish a  basis  for  such  attacks.  It  were  vain  to  deny 
that  many  men  enter  the  legal  profession  with  but 
faint  ideas  of  its  moral  obligations,  and  of  the  rela- 
tions which  the  lawyer  sustains  to  society,  and  who 
traffic  with  the  trust  that  has  been  Qonfided  to  them. 
It  is  these  tradesmen  who  have  rendered  possible  the 
accusation  of  moral  indifference.  Therefore,  it  is  a 
duty  which  every  honorable  practitioner  owes  to  the 
bar,  the  court  and  society,  to  decline  a  case  which, 
on  its  face,  is  unmistakably  tainted  with  immorality 
or  opposed  to  the  known  rules  of  public  policy. 
Cases  will  sometimes  be  presented  where  counsel's 
legal  discrimination  will  at  once  perceive  its  in- 
herent vice.  In  such  event  there  is  but  one  honor- 
able course  to  pursue,  and  that  is  to  advise  the 
client  that  his  cause  is  unjust  and  refuse  to  advo- 
cate it. 


RELATIONS   WITH    CLIENT.  159 

261.  But  while  the  foregoing  emphatically  an- 
nounces a  rule  for  the  abstract  idea  involved  in  a 
case  presented  for  a  lawyer's  consideration,  it  must 
also  be  borne  in  mind  that  the  lawyer's  functions  are 
administrative,  not  judicial,  and  it  is  because  of  a 
failure  to  make  this  distinction  in  the  lay  mind  that 
much  of  the  hostile  criticism  of  the  bar  has  arisen. 
Without  in  any  way  assailing  the  integrity  of  the 
rule  just  stated  it  may  yet  be  said  that  in  very  rare 
instances  will  a  lawyer  be  justified  in  refusing  a 
retainer  on  moral  grounds  only.  In  nearly  all  dis- 
puted questions  of  fact  it  is  impossible  for  him  to 
ascertain  the  truth  of  the  matter  before  he  accepts  a 
retainer.  To  do  this  it  would  be  necessary  to  call 
all  of  the  witnesses,  sift  their  evidence,  and  antici- 
pate every  aspect  the  case  might  assume  upon  the 
hearing.  Manifestly,  this  he  cannot  do,  and  not- 
withstanding that  his  first  view  of  the  case  may  pre- 
dispose him  against  it  yet  in  the  end  it  may  turn 
out  to  be  an  honest  claim  or  a  just  defense. 

262.  Conduct  of  cases.  The  attorney,  to 
employ  a  well-known  legal  metaphor,  stands  in  the 
shoes  of  the  client.  Whatever  the  client  in  fairness 
might  do,  if  conducting  his  own  case,  the  attorney 
may  do  for  him.  This  seems  to  be  the  one  great 
underlying  principle  that  shapes  professional  con- 
duct. Now,  in  the  application  of  this  principle, 
from  a  strictly  ethical  point  of  view,  the  attorney 
must  at  times  be  a  minister  of  hardship.  But  we 
must  distinguish  between  hardship  and  injustice,  for 


l6o  ESSAYS   IN   LEGAL   ETHICS. 

while  the  law  may,  and  often  does,  work  a  hardship, 
it  never  works  injustice.  Let  us  take  the  familiar 
example  afforded  by  the  operation  of  the  statute  of 
limitations.  A  owes  B  ten  dollars.  The  justness 
of  the  debt  is  not  disputed,  and,  from  the  moral 
standpoint,  no  time  can  bar  such  debt  and  no  laches 
can  impair  the  right  to  demand  same.  But  the  law, 
in  the  interests  of  society,  has  placed  a  limit  on  such 
right  and  denied  a  legal  remedy  to  the  creditor 
when  that  limit  has  been  reached.  The  moral  obli- 
gation exerts  just  as  much  force  the  day  after  the 
limit  expired  as  it  did  the  day  before,  and,  in  foro 
conscicntiae,  the  debtor  should  discharge  the  debt. 
But  if  B  neglects  to  sue  for  payment  until  after  the 
statute  has  run,  A  may  interpose  the  bar  of  the 
statute  as  a  defense,  and  thus  virtually  cheat  B  out 
of  the  money.  There  can  be  but  one  opinion  in  the 
mind  of  any  honest  man  with  respect  to  a  person 
who  seeks  to  avoid  the  payment  of  a  just  debt  on  a 
plea  of  this  character,  but,  it  is  a  plea  which  the  law 
permits;  the  client  has  a  right  to  avail  himself  of 
it,  and  his  attorney,  "standing  in  his  shoes,"  is 
under  a  duty  to  urge  it  in  a  suit  brought  to  recover 
the  debt. 

263.  It  is  the  same  with  a  number  of  other 
pleas.  Thus,  C,  a  young  man  twenty  years  of  age, 
borrows  from  D  ten  dollars,  which  he  spends  in  the 
pursuit  of  pleasure.  Morally,  C  can  never  be  ab- 
solved from  the  obligation  of  repayment,  but  as  he 
was  an  infant  at  the  time  the  loan  was  made,  and 


RELATIONS   WITH    CLIENT.  l6l 

the  money  was  not  procured  for  necessaries,  the 
law  permits  him  to  repudiate  the  debt  when  sued 
for  same  after  attaining  his  majority.  This  is  called 
the  plea  of  infancy,  or,  as  generally  known  among 
the  lawyers,  the  "baby  act."  Now,  however  much 
the  attorney  may  despise  a  client  who  seeks  to  take 
advantage  of  his  infancy  to  defeat  an  honest  debt, 
it  is  not  for  him  to  advance  his  own  ideas  of  per- 
sonal duty.  This  is  a  plea  which  the  law  allows; 
it  may,  therefore,  in  fairness  be  pleaded  by  the 
client,  and  the  attorney  is  bound  to  interpose  it 
when  retained  to  defend.  In  all  matters  of  this 
kind  the  attorney  has  no  discretion.  Any  defense 
which  the  law  affords  to  a  party,  any  shield  which 
it  extends  to  him,  any  excuse  which  it  may  furnish, 
must  be  used  by  his  attorney  in  his  interest,  and 
however  improper  such  use  may  seem  to  the  moral- 
ist, if  the  law  sanctions  it  no  blame  can  rest  on  the 
attorney  for  the  results  that  may  flow  from  it. 

264.  It  may  happen  that  either  before  or  upon 
the  trial  the  attorney  discovers  that  his  client  has 
no  cause  of  action  or  ground  of  defense.  In  such 
event  the  client  should  be  informed  of  the  defect  at 
the  earliest  opportunity,  that  he  may  take  steps  for 
a  compromise  or  other  termination  of  the  suit.  An 
attorney  is  guilty  of  gross  unprofessional  conduct 
when  he  advises  or  permits  a  client  to  pursue  lit- 
igation that  can  only  end  in  defeat  with  its  attend- 
ant costs  and  expenses,  and  one  who  designedly 
adopts  such  a  course,  merely  for  the  fee  which  same 


l62  ESSAYS    IN   LEGAL   ETHICS. 

may  bring,  is  deserving  of  the  severest  censure.  If 
the  cause  cannot  be  compromised,  or  if,  with  knowl- 
edge of  the  facts,  the  client  insists  upon  a  trial,  the 
attorney  performs  his  whole  duty,  if  for  the  de- 
fendant, by  scrutinizing  the  plaintiff's  proofs  and 
urging  their  defects,  while  if  he  appears  for  the 
plaintiff  he  can  in  honor  do  nothing  more  than  pre- 
sent the  case  in  the  true  aspect  in  which  he  has  dis- 
cerned it  and  meet  defeat. 

265.  Representing  both  sides.  There  is  an 
implied  obligation  in  every  employment  that  the  em- 
ployee shall  be  faithful  to  his  employer  and  will  do 
nothing  that  may  militate  against  his  best  interests. 
This  obligation  is  nowhere  so  sharply  accentuated 
as  in  the  relation  of  attorney  and  client,  and  because 
of  the  peculiar  personal  quality  which  characterizes 
this  relation  it  necessarily  follows  that  the  attorney 
may  not  assume  to  represent  any  person  or  party 
whose  interests  are  in  any  way  inimical  to  those  of 
the  client  who  first  retained  him. 

266.  It  may  often  happen,  where  the  interests 
are  the  same,  that  an  attorney  may  with  propriety 
represent  a  number  of  persons,  for,  notwithstanding 
that  their  interests  are  separate,  the  cause  of  one 
may  yet  be  the  cause  of  all.  This  is  often  seen  in 
the  case  of  suits  by  or  against  heirs.  Again,  he 
may  properly  represent  a  number  who  are  not 
united  in  interest,  provided  they  do  not  occupy  an- 
tagonistic positions  with  respect  to  each  other.  In- 
deed, the  mutual  convenience  of  such  parties  will 


RELATIONS    WITH    CLIENT.  163 

often  suggest  such  a  course,  as  in  the  case  of  a  num- 
ber of  creditors  who  seek  to  discover  the  concealed 
effects  of  a  bankrupt  debtor.  But  this  would  seem 
to  be  the  limit.  It  is  immaterial  that  parties  may  all 
have  a  common  cause  against  a  common  adversary 
if  they  also  claim  rights  which,  if  enforced,  will 
militate  against  each  other.  In  such  event  the  duty 
of  counsel  is  clear,  and  if  he  has  accepted  a  retainer 
from  one,  then,  in  justice  to  himself  as  well  as  his 
client,  he  should  decline  that  of  the  others.  This 
course  may  at  times  entail  a  pecuniary  hardship  to 
the  attorney,  but  it  seems  to  be  the  only  one  that 
can  be  safely  followed, 

267.  But,  while  the  general  integrity  of  the  rule 
is  beyond  question  it  is  not  without  some  qualifica- 
tion in  its  practical  application,  and  notwithstand- 
ing the  interests  may  be  adverse  yet  if  they  are  to 
be  amicably  adjusted  there  may  be  no  impropriety 
in  having  each  side  represented  by  the  same  counsel. 
The  cases  in  which  this  may  be  done,  however,  are 
exceptional  and  never  entirely  free  from  conflict- 
ing duties.  Thus,  in  matters  of  mortgage  or  sim- 
ilar security,  it  is  not  uncommon  for  the  same  coun- 
sel to  represent  both  borrower  and  lender,  upon  a 
mutual  understanding  of  the  parties  to  that  effect,'^ 
and  the  same  may  be  true  in  matters  connected  with 
the  purchase  and  sale  of  land  or  other  marketable 
commodities.^^  A  familiar  example  is  also  furnished 

•51  Lawall  V.  Groman,  180  Pa.  St.  532. 
82  Cooper  V.  Hamilton,  52  111.  119. 


i64  ESSAYS    IN    LEGAL    ETHICS. 

in  cases  where  an  attorney  employed  to  collect  a 
note  is  appointed  by  the  debtor  his  attorney  in  fact 
to  confess  judgment  on  the  same  note.  In  such  a 
case,  notwithstanding  the  apparent  adverse  posi- 
tions, it  would  seem  that  the  exercise  of  the  power 
by  the  attorney  is  not  inconsistent  with  fair  dealing, 
nor  an  unprofessional  employment  of  the  functions 
of  his  office.^^ 

268.  A  still  further  example  may  be  found 
where,  in  litigated  cases,  the  proceedings,  though 
adverse  in  form,  are  yet  amicable  and  consistent  in 
fact.  This  is  illustrated  where  a  number  of  heirs 
resort  to  the  aid  of  a  court  for  a  judicial  partition 
of  lands.  As,  in  such  a  case,  there  are  no  adverse 
interests  in  fact,  there  would  be  no  impropriety  in 
having  all  of  the  heirs  represented  by  the  same 
counsel.^*  But  these  are  the  exceptional  cases.  In 
the  main  the  rule  holds  good,  and  no  self-respecting 
and  conscientious  attorney  will  ever  allow  his  per- 
sonal interests  to  overcome  his  sense  of  professional 
honor  by  taking  a  fee  from  both  sides  of  a  case. 

269.  In  a  case  where  both  parties  are  his  clients 
and  where  the  professional  relation  has  induced  con- 
fidential disclosures,  it  would  seem  that  the  only  po- 
sition the  attorney  can  consistently  take  is  that  of 

^3  Wassel  V.  Reardon,  1 1  Ark.  705. 

^*  In  practice  there  would,  of  course,  be  a  technical  diffi- 
culty, as  no  court  will  permit  an  attorney  to  appear  of  rec- 
ord for  both  plaintiff  and  defendant.  The  defendants,  there- 
fore, would  have  to  appear  by  nominal  attorneys,  or,  as  is 
frequently  the  case,  suffer  the  bill  to  be  taken  as  confessed. 


RELATIONS   WITH    CLIENT.  165 

Strict  neutrality.  He  cannot,  with  propriety,  act  for 
either,  and  should  decline  to  appear  in  the  case. 
About  the  only  office  he  may  fill  in  such  a  juncture 
is  that  of  mediator,  to  effect,  if  possible,  a  concilia- 
tion, but  even  this  office  should  be  accepted  with 
the  greatest  reluctance  and  abandoned  as  soon  as  it 
is  evident  such  conciliation  cannot  be  effected. 
Otherwise  his  conflicting  duties  will  render  it  im- 
possible for  him  to  properly  represent  either,  and 
should  he  attempt  so  to  do  he  subjects  himself  to  a 
withdrawal  of  the  confidence  of  both. 

270.  Privileged  communications.  It  has 
long  been  a  rule  of  the  common  law  that  matters 
coming  within  the  ordinary  scope  of  professional 
employment,  and  which  are  known  to  the  attorney 
only  through  his  official  relation,  are  not  subjects  of 
judicial  inquiry.  These  matters  are  technically 
known  as  privileged  communications. 

271.  This  rule  was  not  made  on  account  of  any 
special  importance  which  the  law  attributes  to  the 
business  of  legal  practitioners,  nor  with  a  design 
to  afford  them  protection,  but,  as  it  is  impossible  to 
properly  conduct  the  business  of  courts  without  the 
aid  of  men  skilled  in  those  matters  affecting  rights 
and  duties  which  form  the  subject  of  judicial  pro- 
ceedings, if  communications  made  to  them  were  liot 
protected  no  one  would  dare  to  consult  a  legal  ad- 
viser nor  could  any  one  safely  come  into  court  if 
he  should  have  sought  such  advice.  Therefore,  as 
it  is  of  the  utmost  importance  that  suitors  should 


l66  ESSAYS    IN    LEGAL   ETHICS. 

be  permitted  to  avail  themselves  of  the  skill  and 
learning  of  those  whom  the  law  has  designated  as 
its  ministers,  and  as  it  is  necessary  to  the  ascertain- 
ment and  maintenance  of  their  rights  that  confiden- 
tial disclosures  should  be  made  to  the  legal  adviser 
to  enable  him  to  properly  perform  the  duties  of  his 
office,  so  the  law  has  considered  it  the  wisest  policy 
to  encourage  and  sustain  this  confidence  by  requir- 
ing that  as  to  such  facts  the  mouth  of  the  attorney 
shall  be  forever  sealed.®' 

272.  The  rule  extends  to  all  communications  by 
a  client  to  his  counsel,  for  purposes  of  professional 
advice  or  assistance,  whether  such  advice  or  aid  re- 
lates to  a  suit  pending  or  contemplated,  or  any  other 
proper  matter  for  professional  assistance.  When  it 
applies  it  is  perpetual,  and  the  communications  may 
not  be  revealed  at  any  time,  nor  in  any  action  or 
proceeding  between  other  persons,  nor  after  the  re- 
lation of  attorney  and  client  has  been  terminated.^® 
It  is  a  privilege  of  the  client,  and  never  ceases  unless 
voluntarily  waived  by  him.  Not  only  will  courts 
never  compel  an  attorney  to  disclose  facts  commu- 
nicated to  him  in  his  professional  capacity  but,  as 
a  rule,  they  will  not  permit  him  so  to  do,®''  and  it 
has  been  held  that  one  who  disregards  his  duty  in 

cs  Hemenway  v.  Smith,  28  Vt.  701 ;  Bigler  v.  Reyher,  43 
Ind.  112;  Barnes  v.  Harris,  7  Cush.  (Mass.)  576;  People  v. 
Barker.  56  111.  299.  The  rule  has  further  been  confirmed  by 
statutory  enactments  in  most  of  the  states. 

66  Re   Boone,  83  Fed.  Rep.  944- 

«'  People  V.  Atkinson,  40  Cal.  284. 


RELATIONS   WITH    CLIENT.  167 

this  particular  commits  an  offense  that  justifies  his 
exclusion  from  the  bar.^^ 

273.  It  necessarily  follows  that,  where  confiden- 
tial communications  are  so  rigorously  guarded  that 
courts  will  not  permit  them  to  be  divulged  in  the 
interests  of  justice,  the  attorney  is  wholly  without 
legal  or  moral  right  to  give  them  a  private  publica- 
tion. Indeed,  we  can  hardly  imagine  a  person, 
clothed  with  the  responsible  character  of  a  lawyer, 
so  dead  to  all  sense  of  honor  as  to  voluntarily  dis- 
close the  affairs  of  his  client  committed  to  him  under 
the  seal  of  professional  secrecy.  In  case  an  attorney 
should  so  disregard  the  proprieties  as  to  wantonly 
or  maliciously  betray  his  client's  trust  in  this  re- 
spect, he  must  be  considered  as  having  forfeited  his 
right  to  his  office  and  should  be  promptly  and  for- 
ever disbarred. 

274.  In  the  application  of  the  rule  courts  have 
usually  accorded  it  a  liberal  construction  with  a  view 
to  maintaining  its  integrity,  and  it  has  been  held 
that  it  is  broad  enough  to  embrace  a  case  where  the 
one  seeking  counsel  pays  no  fee,  and  where  he  em- 
ploys other  counsel  in  the  prosecution  of  the  busi- 
ness, and  even  where  the  lawyer  consulted  is  after- 
ward employed  on  the  other  side.  It  is  contended 
in  support  of  these  positions  that  limitations  of  the 
rule,  if  allowed,  might  be  unknown  to  laymen ;  and 
if  they  cannot  feel  perfect  freedom  in  all  cases  then, 

«8  People  V.  Barker,  56  111.  299 ;  Re  Boone,  83  Fed.  Rep. 
944- 


1 68  ESSAYS    IN   LEGAL   ETHICS. 

instead  of  the  implicit  confidence  that  should  exist, 
the  intercourse  might  be  restrained  by  fear  and 
marred  by  dissimulation  on  the  part  of  the  client, 
and  thus  the  object  of  the  rule  be  defeated. 

275.  To  the  general  rule,  as  above  stated,  there 
are  a  few  exceptions  growing  out  of  peculiar  cir- 
cumstances. Thus,  where  the  communications  have 
reference  to  an  unlawful  purpose,  such  as  the  com- 
mission of  crime,*^''  they  are  not  privileged.  In 
such  event  they  are  treated  as  being  in  the  nature 
of  conspiracies,  and  therefore  subject  to  be  inquired 
into.''^^  Again,  where  an  attorney  has  acted  for  two 
clients,  it  seems  his  communications  with  them  are 
not  privileged  in  subsequent  suits  between  them  or 
their  representatives.'^^  So,  too,  where  the  com- 
munications are  made  in  the  presence  of  all  the  par- 
ties to  the  controversy,  they  are  not  privileged,  and 
may  be  treated  in  the  same  manner  as  any  other 
competent  evidence.'^^  But  this  is  practically  the 
full  limit  of  the  exceptions,  and  where  the  matter  in 

^^  Thus,  where  a  person  who  was  on  trial  for  murder  had 
previously  consulted  an  attorney  for  the  purpose  of  ascer- 
taining what  the  law  was  if  he  should  kill  deceased,  from 
whom  he  had  received  great  provocation,  it  was  held  that  the 
communication  between  defendant  and  the  attorney  was  not 
privileged.  Orman  v.  State,  22  Tex.  App.  604,  and  see,  Peo- 
ple V.  Mahon,  i  Utah,  205;  State  v.  McChesney,  16  Mo.  App. 
259- 

^0  People  V.  Van  Alstine,  57  Mich.  69. 

■^^  Sherman  v.  Scott.  27  Hun.  (N.  Y.)  331 ;  Gulick  v.  Gulick, 
39  N.  J.   Eq.  516;  Goodwin's  appeal,  117  Pa.  St.  514. 

^2  Britton  V.  Lorenz,  45  N.  Y.  51. 


RELATIONS   WITH    CLIENT.  169 

question  does  not  come  fairly  within  them,  any 
acts  done,  or  words  spoken  by  a  cHent  in  the  pres- 
ence of  his  attorney  and  in  the  scope  of  his  employ- 
ment are  privileged,""  as  are  all  advice  given  or  opin- 
ions stated  by  the  attorney/'^ 

2'](i.  The  rule  of  privileged  communications  ex- 
tends its  protecting  influence  over  parties  only 
v/here  the  relation  of  attorney  and  client  exists.'^^ 
Hence,  where  an  attorney  is  consulted  merely  as  a 
friend,  or  in  a  casual  way,  and  where  neither  he  nor 
the  person  consulting  him,  supposes  the  relation  to 
exist,  the  communications  are  manifestly  not  en- 
titled to  the  sanction  of  secrecy  extended  to  com- 
munications received  in  a  professional  capacity/^ 
In  such  event  the  attorney  may  be  compelled  to  tes- 
tify if  called  upon,  and  the  matter  of  privately  di- 
vulging such  communications  is  to  be  governed  by 
the  same  considerations  that  would  influence  the  at- 
torney to  state  or  withhold  any  other  information 
he  might  possess. 

277.  Adverse  employment.  While  the  rule 
is  imperative  that  an  attorney  may  not  accept  an 
adverse  retainer  during  the  continuance  of  a  pro- 
fessional relation,  nor  assume  a  position  hostile  to 
his  client  and  inimical  to  the  interest  he  has  been 
engaged  to  protect,'''^  it  follows,  on  principle,  that 

"  Kaut  V.  Kessler,  114  Pa.  St.  603. 
"■*  Lengsfield  v.   Richardson,  52  Miss.  443. 
'5  Romberg  v.  Hughes,  18  Neb.  579. 
'6  Goltra  v.  Wolcott,  14  111.  89 ;  i  Greenl.  Ev.  §  244. 
''Fairfield  Bar  v.  Taylor,  60  Conn.  11;  Arrington  v.  Ar- 
rington,  116  N.  C.   170. 


I70  ESSAYS   IN   LEGAL  ETHICS. 

he  may  not,  after  the  relation  has  ceased,  seek  or 
accept  an  employment  in  opposition  to  his  former 
client  for  the  purpose  of  using  against  him  infor- 
mation confidentially  gained  while  the  relation  sub- 
sisted.'^^ Such  an  act  involves  not  only  a  high  de- 
gree of  moral  turpitude  but  is  a  positive  breach  of 
the  attorney's  oath,  as  well  as  a  violation  of  the  well- 
established  rule  relating  to  privileged  communica- 
tion. For  such  a  willful  disregard  of  professional 
obligations  it  would  be  the  duty  of  a  court  to  disbar 
the  offender  whenever  the  matter  was  brought  to  its 
attention  and  a  proper  case  made  out,"^^ 

278.  Withdrawal  from  case.  The  under- 
taking of  an  attorney  retained  to  conduct  or  defend 
a  suit  is  usually  regarded  as  an  entire  and  contin- 
uing contract  to  remain  in  the  case  until  its  termi- 
nation.^°  There  are  many  reasons  why  this  should 
be  so,  and  the  reasons  are  obvious.  Hence  an  at- 
torney acts  in  bad  faith  if,  without  justifiable  cause, 
he  abandons  the  suit,  and  particularly  is  this  true 
where  he  withdraws  without  giving  his  client  ample 
notice  and  a  full  opportunity  to  procure  other  coun- 
sel.81 

■^8  Re  Boone,  83  Fed.  Rep.  944 ;  Hatch  v.  Fogarty,  10  Abb. 
Pr.   (N.  Y.)   147. 

^^  Re  Boone,  83  Fed.  Rep.  944 ;  and  see,  Parker  v.  Parker, 
99,  Ala.  239;  Spinks  v.  Davis,  32  Miss.  154;  Valentine  v. 
Stewart,  15  Cal.  387. 

80  2  Greenl.  Ev.  sec.  142;  Cairo  etc.  R.  R.  Co.  v.  Koerner, 
3  111.  App.  248. 

81  Nichells  v.  Nichells,  5  N.  Dak.  125 ;  Tenney  v.  Berger, 
93  N.  Y.  524. 


RELATIONS   WITH    CLIENT.  I/I 

279.  But  while  the  law  implies  the  obligation 
of  continuous  service,  and  will  impute  bad  faith  in 
its  breach,  an  attorney  may,  at  any  proper  stage  of 
the  proceeding,  demand  his  fees  already  earned,  and 
if  same  are  not  paid  he  may,  after  giving  reasonable 
notice,  withdraw  from  the  case.^^  There  is  no  dis- 
tinction, in  principle,  between  the  relation  of  attor- 
ney and  client  and  any  other  form  of  agency.  It  is 
essentially  a  contract  of  employment  involving  the 
reciprocal  obligations  of  service  on  the  one  hand 
and  compensation  on  the  other.  In  the  absence  of 
a  special  contract  there  is  no  good  reason,  either  in 
law  or  morals,  for  deferring  such  compensation 
until  the  final  determination  of  the  action,  and  the 
attorney  may,  with  undoubted  propriety,  demand 
such  sums  as  his  services  already  rendered  are  rea- 
sonably worth.  A  non-compliance  with  such  de- 
mand will  constitute  a  just  cause  for  declining  to 
further  serve. 

280.  The  intent  of  the  rule  seems  to  be  that  an 
attorney  may  not  capriciously  or  maliciously  with- 
draw, and  notwithstanding  that  there  may  be  un- 
paid claims  for  other  services,  rendered  in  other  and 
different  matters,  or  even  if  they  arose  during  the 
progress  of  the  suit,  but  not  out  of  it,  this  would  not 
furnish  a  cause  for  abandonment. 

281.  But,  while  counsel  may  not  summarily 
withdraw  from  a  case  from  motives  above  indicated, 
there  may  yet  be  occasions  when  it  becomes  a  duty 

82  Cairo  etc.  R.  R.  Co.  v.  Koerner,  3  111.  App.  248. 


172  ESSAYS   IN   LEGAL  ETHICS. 

so  to  do  and  when  to  continue  would  constitute  a 
more  flagrant  breach  of  morals  than  to  retire.  A 
lawyer  is  under  no  obligation  to  advocate  iniquity. 
He  may  know,  or  at  least  feel,  that  he  will  be  suc- 
cessful in  the  issue;  the  circumstances  may  be  such 
as  to  inspire  confidence  in  the  result;  but  unless  he 
also  believes  that  the  cause  is  just  he  does  violence 
to  every  principle  of  advocacy  by  maintaining  it. 
He  has  a  right  to  take  all  the  advantage  his  learning 
and  talents  afford  him  in  order  to  sustain  a  good 
cause  or  defeat  a  bad  one,  but  he  has  no  privilege  to 
substitute  his  talents  or  learning  for  the  honesty  of 
a  case  and  thereby  render  iniquity  triumphant. 
Therefore,  if  during  the  progress  of  a  suit  it  be- 
comes apparent  that  it  is  unsound  or  dishonest,  he 
is  justified  in  refusing  longer  to  continue  in  it.^* 
Yet  this  is  a  right  that  should  be  exercised  with 
care  and  prudence.  It  may  be  that,  without  knowl- 
edge of  its  inherent  vice,  he  has  advanced  so  far  in 
the  cause  that  he  cannot  abandon  it  without  serious- 
ly compromising  the  interests  of  his  client.  In 
such  event,  if  professional  good  faith  may  seem  to 
demand  it,  he  should  remain,  but  he  must  do  no 
more  than  such  professional  good  faith  requires. 
While  he  is  not  morally  responsible  for  either  the 
acts  or  motives  of  his  client  in  maintaining  an  un- 
just cause,  he  is  responsible  for  his  own  acts  if  he 
adopts  its  principles,  argues  from  premises  that 
have  not  been  proved,  urges  presumptions  which, 
83  Brown's,  Forum,  Vol.  2,  p.  31. 


RELATIONS   WITH    CLIENT.  173 

although  consistent  with  the  evidence  submitted, 
are  yet  inconsistent  with  the  actual  facts,  or  main- 
tains affirmations  which  he  knows  or  has  reason  to 
believe  are  false. 

282.  An  attorney  may  also  be  justified  in  with- 
drawing from  a  pending  case  for  reasons  which  af- 
fect only  himself.  Thus,  if  his  client  insists  upon 
associating  with  him  another  attorney  with  whom 
he  objects  to  have  personal  or  professional  rela- 
tions, or  with  whom  he  cannot  cordially  co-operate, 
he  may  decline  to  proceed  farther  with  the  case  and 
will  be  entitled  to  compensation  for  services  ren- 
dered up  to  the  time  of  such  withdrawal.^"* 

283.  Withdrawing  appearance  or  plead- 
ings. If  a  withdrawal  from  a  case  and  a  refusal  to 
longer  represent  the  client,  except  for  good  cause, 
involves  the  element  of  bad  faith,  then,  with  strong- 
er reason,  may  we  not  say  that  a  withdrawal  of  ap- 
pearance amounts  to  an  act  of  moral  turpitude 
which  merits  an  exercise  of  the  disciplinary  power 
of  the  court  in  respect  to  the  offender.  An  attor- 
ney who  has  entered  an  appearance  for  a  suitor  has 
a  wide  range  of  authority  and  discretion  in  respect 
to  all  matters  relating  to  the  suit,  and  may,  under 
proper  circumstances  and  with  honest  motive,  with- 
draw any  paper  or  pleading  that  may  have  been 
filed,  even  his  own  appearance,  notwithstanding 
that  the  effect  may  be  to  place  the  client  in  default.*^ 

84  Tenney  v.  Berger,  93  N.  Y.  524. 

85  Chicago  Building   Society  v.  Haas,  iii  111.  176. 


174  ESSAYS    IN    LEGAL   ETHICS. 

In  like  manner  he  may  dismiss  his  cHent's  suit  with- 
out any  special  authority.®^  But  where  an  appear- 
ance has  once  been  properly  entered,  where 
pleadings  have  been  filed,  or  an  issue  made  up,  the 
attorney  may  not,  from  mere  caprice  or  vindictive 
motives,  withdraw  such  pleadings  or  appearance, 
and  should  he  do  so  the  act  may  be  regarded  as  a 
breach  of  faith,  indefensible  in  morals  and  illegal 
in  law.®'' 

284.  The  principle  of  confidence,  which  lies  at 
the  foundation  of  the  relation  of  attorney  and  client 
imperatively  forbids  the  attorne}^,  so  long  as  that 
relation  exists,  from  doing  any  act  v/hich  is  inspired 
by  malice  or  hostility  to  the  client  or  his  cause,  the 
effect  of  which  is  necessarily  injurious  to  the  matter 
intrusted  to  his  care.^^ 

285.  So,  too,  an  attorney,  when  acting  in  good 
faith  and  without  objection  from  his  client,  may 
waive  or  withdraw  a  defense  and  consent  to  judg- 
ment, but  he  has  no  power  fraudulently  to  barter 
away  any  of  his  client's  rights  or  dispose  of  any  of 
his  interests  to  the  opposite  party.^^  Should  he 
attem.pt  to  do  so,  then,  upon  a  showing  of  the  fact, 
it  would  become  the  duty  of  the  court  to  protect 

86  Davis  V.  Hall,  90  Mo.  659;  Simpson  v.  Brown,  i  Wash. 
247. 

87  Nichells  v.  Nichells,  5  N.  Dak.  125. 

88  Howe  V.  Lawrence,  22  N.  J.  L.  99 ;  Ohlquist  v.  Farwell,  71 
Iowa,  231;  Haverty  v.  Haverty,  35  Kan.  438;  Tenney  v.  Ber- 
ger,  93  N.  Y.  524. 

89  Chicago  Building  Society  v.  Haas,  in  111.  176. 


RELATIONS    WITH    CLIENT.  175 

the  client  from  the  treachery  of  his  attorney  and 
discipHne  the  offender.^*^ 

286.  Inconsistent  positions.  It  is  among 
charges  sometimes  brought  against  the  profession, 
that  the  lawyer's  occupation  renders  him  unstable 
in  matters  of  opinion,  and  that,  by  reason  of  the 
inconsistent  positions  he  is  frequently  called  upon 
to  occupy,  his  statements  are  not  always  to  be  relied 
upon.  This  charge  is  not  wholly  without  founda- 
tion, and  has  been  rendered  possible  by  a  reckless 
and  uncalled  for  offering  of  private  opinion,  with 
respect  to  their  clients  and  the  merits  of  their 
causes,  on  the  part  of  many  practitioners.  There 
is,  perhaps,  no  more  impropriety  in  the  expression 
of  opinion  by  an  attorney,  with  respect  to  causes 
pending  in  the  courts,  than  by  the  laity.  But,  in  his 
own  causes  at  least,  he  is  not  employed  to  give 
voice  to  his  own  opinions,  nor  can  his  client  claim 
this  as  a  professional  duty.  He  fully  discharges 
every  professional  obligation  by  presenting  his 
client's  case  to  the  best  advantage  and  to  the  best 
of  his  ability.  Beyond  this  he  cannot  safely  pro- 
ceed, r.iid  should  he  assume  so  to  do  unforeseen 
circumstances  may  often  place  him  in  embarrassing 
positions.®^ 

90  Re  Boone,  83  Fed.  Rep.  944. 

^1  As  an  illustration  of  the  statement  of  the  text,  the  fol- 
lowing excerpt  from  the  A^   Y.  World,  is  pertinent : 

"As  a  lawyer,  Mr.  S.,  of  Kansas,  defended  a  negro  mur- 
derer, and  after  his  sentence  wrote  to  the  Governor  a  strong 
indorsement  of  the  negro's  application  for  a  pardon.     Now, 


176  ESSAYS    IN   LEGAL   ETHICS. 

287.  The  mere  fact,  however,  that  an  attorney 
at  a  former  time,  and  while  engaged  in  professional 
employment,  held  a  different  view  of  the  law  of  the 
case  from  that  afterwards  advocated  by  him,  does 
not,  of  itself,  disqualify  him  from  accepting  a  re- 
tainer or  affect  his  service.^^  It  must  often  happen, 
in  the  course  of  an  active  practice,  that  an  attorney 
will  be  called  upon  to  urge  views  he  has  at  some 
time  combated.  Of  course,  this  will  be  condemned 
by  the  pseudo-moralist  as  being  simply  an  attempt 
to  prove  that  black  is  white,  or  white  is  black,  ac- 
cording as  he  is  paid.  But  if  this  were  not  so,  much 
of  the  usefulness  of  the  advocate  would  be  elim- 
inated. Besides,  a  lawyer  has  the  same  right  to 
alter  his  opinions  as  any  other  person. 

288.  Money  lost  in  hands  of  attorney.  In 
the  course  of  professional  employment  a  large 
amount  of  money,  belonging  to  clients,  must 
necessarily  pass  through  an  attorney's  hands.  Not 
infrequently,  through  no  fault  of  his,  sums  are  lost 
while  still  in  his  nominal  or  actual  custody.  A 
question  is  raised,  in  such  a  case,  with  respect  both 

as  Gov.  S.  of  Kansas,  he  has  had  to  pass  upon  a  new  appli- 
cation for  his  old  client's  pardon,  and  his  own  letter,  written 
as  a  lawyer,  has  been  laid  before  him. 

"But  he  refuses  to  grant  the  pardon  and  says  that  as  Gov- 
ernor it  is  his  right  and  duty  to  view  the  matter  'in  an  entire- 
ly different  light.' 

"This  raises  the  very  interesting  though  by  no  means  new 
question :  In  the  code  of  legal  ethics  what  does  a  client's  fee 
buy  and  what  does  it  leave  unbought?" 

»2  Smith  V.  Ry.  Co.  60  Iowa,  515. 


RELATIONS   WITH    CLIENT.  177 

to  the  moral  and  legal  liability  of  the  attorney  to 
reimburse  his  client  for  the  loss.  The  receipt  of 
money  by  an  attorney,  in  the  prosecution  of  his 
employment,  does  not,  as  a  rule,  create  the  relation 
of  debtor  and  creditor  between  him  and  his  client. 
The  money  collected  belongs  to  the  client  and  the 
attorney  is  regarded  as  a  trustee.  The  money,  then, 
would  be  a  trust  fund,  and  its  payment,  preserva- 
tion or  loss,  would  be  governed  by  the  same  rules 
that  obtain  generally  in  cases  of  trust.  If  the  attor- 
ney exercises  the  same  caution  with  respect  to  his 
client's  money  that  a  prudent  man  would  display 
in  respect  of  his  own  money,  and  a  loss  happens, 
he  will  be  excused.^^  In  such  event  there  is  neither 
a  legal  nor  a  moral  obligation  to  indemnify  the 
client  for  the  loss. 

289.  Now  in  these  days  of  commercial  activity 
but  few  men,  even  the  most  prudent,  retain  their 
money  in  their  own  custody  but  commit  its  care 
to  others,  both  for  the  feeling  of  security  which 
such  com^mittal  engenders  and  the  facility  with 
which  it  may  be  transferred  or  paid  out  by  means 
of  checks.  Whatever  else  the  lawyer's  "strong 
box"  may  contain  it  rarely  is  made  a  receptacle  for 
money.  But  \\'hile  a  deposit  of  money  in  a  bank 
having  a  good  standing  is  a  distinctly  prudent  act, 
it  must  yet  be  remembered  that  the  client's  money 
is  a  trust,  and  hence,  while  there  may  be  no  impro- 
priety in  depositing  same  in  the  attorney's  general 

^8  Norwood  V.  Harness,  98  Ind.  134. 


178  ESSAYS    IN    LEGAL   ETHICS. 

account,  there  is  a  danger.  If  the  attorney,  for  his 
personal  convenience,  or  from  whatever  motive, 
deposits  his  client's  money  in  his  own  name,  thereby 
vesting  himself  with  a  legal  title  to  same,  it  fol- 
lows, as  a  necessary  consequence,  when  a  loss 
occurs,  that  he  will  not  be  permitted  to  say,  as 
against  his  client,  that  the  fact  was  not  as  he  has 
voluntarily  made  it  appear.  The  loss  must  be  borne 
by  himself.^^  On  the  other  hand,  if  a  deposit  is 
made  in  such  a  manner  as  to  preserve  its  trust 
character  on  the  books  of  the  bank,  the  loss,  if  any 
occurs,  falls  upon  the  client.^^ 

290.  Money  retained  by  attorney.  Much 
of  the  time,  labor,  and  skill  of  attorneys,  is  devoted 
to  the  recovery  of  money  belonging  to  or  claimed 
by  their  clients.  In  most  cases  the  money  so  re- 
covered is  collected  by  the  attorney,  whose  duty  it 
is,  after  deducting  his  own  reasonable  charges  and 
expenses,  to  promptly  pay  the  same  over  to  the 
client.  In  a  number  of  states  this  duty  is  further 
emphasized  by  a  mandatory  statute,  and  a  refusal 
or  neglect  so  to  pay,  after  demand  made,  subjects 
the  attorney  to  disbarment.^® 

291.  In  case  of  willful  misappropriation  by  the 

»*  Gilbert  v.  Welsch,  75  Ind.  557 ;  Williams  v.  Williams,  55 
Wis.  300;  Norris  v.  Hero,  22  La.  An.  605. 

"^  Norwood  V.  Harness,  98  Ind.  134.  Hence,  it  is  well  to 
keep  at  least  two  accomits ;  one  as  an  individual  and  one  as 
a  trustee. 

o«  See,  Re  Treadwell,  67  Gal.  353 ;  Re  Temple,  2,2  Minn. 
343;  People  V.  Ryalls,  8  Colo.  Z2>^. 


RELATIONS    WITH    CLIENT.  1/9 

attorney  no  question  can  arise  and  he  occupies  no 
better  position  than  any  other  thief.  This  is  not 
a  matter  of  ethics,  but  of  criminal  law,  and  there- 
fore we  may  pass  it  without  further  notice.  But 
the  attorney  may  abuse  the  relation  created  by  his 
employment  in  many  ways  short  of  felonious  with- 
holding of  funds.  Mere  neglect,  inattention,  tem- 
porary use  of  funds  by  him,  vexatious  and  unrea- 
sonable demands  with  respect  to  same,  may  all  tend 
to  disclose  conditions  that  can  not  exist  with  that 
good  faith,  integrity  and  honor  that  should  charac- 
terize the  attorney's  transactions  with  his  client. 
Hence,  irrespective  of  any  criminal  intent,  where  it 
is  shown  that  an  attorney  has  failed  to  pay  over 
money  on  demand,  and  after  a  tender  of  his  reason- 
able fees,  or  where  he  has  postponed  the  just  claims 
of  his  client,  or  by  evasions  of  the  demand  has 
forced  him  to  expense  and  litigation,  this  may  be 
considered  such  mal-conduct  as  would  justify  a 
court  in  striking  the  name  of  the  offender  from  the 
rolls.»^ 

292.  Right  of  client  to  discharge  his 
COUNSEL.  While  an  attorney  who  has  accepted  a 
retainer  is  not  at  liberty  to  sever  the  relation,  ex- 
cept for  cause,  it  would  seem  the  client  is  not  so 
bound.  Upon  this  point  the  courts  are  generally 
agreed.  It  would  further  seem,  that  a  client  may 
discharge  his  attorney  at  any  time,  with  or  without 
cause,    even   where  the   case   has   been   taken   on 

^7  People  V.  Palmer,  61  111.  255. 


l8o  ESSAYS   IN   LEGAL  ETHICS. 

a  contingent  fee.  If  the  discharge  is  without  cause 
the  attorney  may  recover  for  services  already  per- 
formed on  a  quantum  meruit,  and  if  no  service  has 
been  rendered  no  action  will  lie.  If  the  discharge 
is  for  cause,  then,  in  most  cases,  the  attorney  for- 
feits his  fee.^^ 

293.  While  there  would  certainly  seem  to  be  an 
element  of  hardship  in  the  rule,  it  seems  to  be  sus- 
tained on  the  ground  that  the  relationship  is  so 
peculiarly  one  of  confidence  that  it  would  be  unjust 
to  require  a  party  to  continue  in  his  service  one 
whom  he  distrusts,  or  on  whose  skill  and  ability 
he  no  longer  relies,  or  to  permit  an  attorney,  under 
such  circumstances,  to  continue  a  relationship  where 
the  lack  of  confidence  would  seriously  impair  his 
efficiency  and  interfere  with  his  ability  to  serve  both 
client  and  court  in  the  manner  his  office  requires.^^ 

»8  See,  Moore  v.  Robinson,  92  111.  491 ;  Duke  v.  Harper,  8 
Mo.  App.  296;  Quint  v.  Mining  Co.  4  Nev.  304;  Scobey  v. 
Ross,  5  Ind.  445. 

99  Henry  v.  Vance,  63  S.  W.  Rep.  (Ky.)  273. 


CHAPTER  IX. 
RELATIONS   WITH    COURT. 

Nature  of  the  judicial  office — Conduct  in  court — Conduct 
out  of  court  —  Influencing  judges  —  Criticism  of 
judges — Deceiving  the  court — Misstating  law  or  facts. 

294.  The  judicial  office.  In  every  contro- 
verted question  there  must  be  a  resort  to  final 
authority  of  some  kind  if  the  question  is  to  be 
closed.  In  an  earlier  and  ruder  age  the  appeal  was 
to  arms,  and  force  v^as  the  final  arbiter.  Happily, 
the  world  has  passed  this  stage  of  development  and 
now  the  appeal  is  to  reason.  But  opposing  minds 
may  not  overcome  in  the  same  manner  as  brute 
force  and,  therefore,  a  third  mind  is  necessary  to 
intervene  between  them.  It  is  upon  this  theory 
that  courts  have  been  established  and  justice  is 
administered.     This  third  mind  we  call  the  judge. 

295.  A  man  called  to  fill  the  honorable  station 
of  a  judge  should  possess  unbounded  learning  with 
intellectual  powers  of  the  highest  order.  It  not  in- 
frequently happens  that  the  judge  is  both  learned 
and  wise,  but  none,  not  even  the  best,  can  properly 
and  fully  discharge  the  functions  of  his  office  with- 
out the  aid  of  the  bar.  Occasionally  some  shallow- 
brained  pretender,  by  a  wave  of  fortunate  chance, 
is  cast  upon  the  bench,  and,  gazing  upon  his  own 


l82  ESSAYS    IN    LEGAL   ETHICS. 

distorted  image  reflected  in  the  pellucid  mirror  of 
his  mind,  fancies  he  knows  it  all.  But  the  great 
lawyer,  the  profound  jurist,  eagerly  avails  himself 
of  the  benefits  derived  from  the  research  and  rea- 
soning of  counsel,  and  gratefully  acknowledges  the 
assistance  which  they  afford. 

296.  In  the  hurry  and  rush  of  modern  life,  and 
in  view  of  the  vast  volume  of  litigation  passing 
through  the  courts,  it  is  essential  to  the  due  admin- 
istration of  justice  that  some  persons  shall  act  as 
aids  and  advisers  to  the  court,  presenting  in  turn 
each  aspect  of  the  case;  investigating  and  applying 
the  principles  that  should  govern  it ;  collating  and 
explaining  the  authorities  which  bear  upon  it,  and 
suggesting  the  distinctions  and  analogies  which 
must  be  regarded  in  arriving  at  a  decision.  This  is 
the  province  of  counsel,  and  it  is  largely  through  the 
labors  of  counsel  that  judges  are  enabled  to  dispatch 
the  business  of  the  courts. 

297.  Conduct  in  court.  As  previously 
shown,  a  lawyer  is  under  obligation  to  do  nothing 
that  shall  detract  from  the  dignity  of  the  court,  of 
which  he  is  himself  a  sworn  officer  and  assistant. 
He  should  at  all  times  pay  deferential  respect  to  the 
judge,  and  scrupulously  observe  the  decorum  of  the 
court  room.^  The  public  takes  its  cue  in  this  respect 
from  the  lawyers,  and  unless  the  members  of  the 
bar  shall  by  their  own  example  inspire  those  feel- 
ings of  respect  for  courts  and  for  judicial  proceed- 

2  In  re  Pryor,  18  Kan.  72. 


RELATIONS   WITH    COURT.  183 

ings,  which  in  a  country  Hke  ours  constitutes  their 
greatest  safeguard,  it  were  idle  to  expect  the  pubUc 
to  be  more  considerate. 

298.  Nor  is  this  merely  a  matter  of  good  man- 
nerG  or  formal  etiquette.  There  is  a  deep  underly- 
ing ethical  principle  as  well.  A  court  is  a  place 
wherein  justice  is  judicially  administered  by  the 
supreme  power  of  the  state.  In  England  this  power 
would  be  the  king,  and  while  it  is,  of  course,  impos- 
sible that  the  king  should  personally  dispense  the 
justice  of  the  realm,  yet,  in  contemplation  of  law, 
he  is  always  present  in  his  judges,  whose  power  is 
only  an  emanation  of  the  royal  prerogative.^  The 
judicial  machinery  of  the  United  States  is  modeled 
after  that  of  England,  and  while  our  political  condi- 
tions are  vastly  different  from  those  which  prevail 
in  England  the  theories  involved  in  the  administra- 
tion of  justice  are  the  same.  The  sovereignty  of 
the  state  is  always  present  in  every  court  established 
by  law,  and  its  visible  representative  is  the  judge. 
Whatever  our  opinion  may  be  of  the  man,  and  how- 
ever little  he  may  be  entitled  to  our  respect  for  him- 
self, we  must  yet  respect  the  majesty  of  his  office. 

299.  But,  while  a  becoming  respect  for  all  who 
"sit  in  judgment"  is  strictly  enjoined,  both  as  a 
moral  and  a  professional  duty,  a  manly  respect  only 
is  intended,  not  a  servile  obsequiousness.  The  dig- 
nity of  the  bench  must  be  maintained,  but  so  also 
must  the  independence  of  the  bar.     The  judge  fills 

*  Black.  Com.  b.  ii,  p.  23  (Cooky's  Ed.) 


l84  ESSAYS   IN   LEGAL   ETHICS. 

a  most  exalted  office;  he  should  be  a  most  exalted 
man;  but  he  is  only  a  man  in  any  event  and  not  a 
being  of  superior  mould.  Occasions  will  arise  when 
duty  to  the  client  and  a  proper  regard  for  the  in- 
terests committed  to  his  charge,  renders  necessary  a 
firm  and  decided  opposition,  on  the  part  of  the  ad- 
vocate, to  the  views  expressed  or  the  course  pur- 
sued by  the  court.  But  this  may  and  should  be  done 
in  an  open,  manly  way.  The  outward  forms  of  re- 
spect for  the  court  should  be  preserved,  even  though 
the  judge  may  be  unmindful  of  his  own  duty  of  re- 
spect to  the  bar. 

300.  Conduct  out  of  court.  While  it  is 
comparatively  easy  to  prescribe  a  line  of  conduct  to 
be  followed  in  court,  it  is  correspondingly  difficult 
to  lay  down  rules  for  general  observance  by  the  bar, 
with  respect  to  its  attitude  toward  the  bench,  when 
out  of  court.  Indeed,  this  is  a  matter  upon  which 
there  can  hardly  be  said  to  be  a  settled  opinion,  and 
many  differing  views  have  been  presented.  If  the 
judge  is  a  gentleman,  then  in  the  intercourse  of  pri- 
vate life  he  certainly  should  be  accorded  the  civil- 
ities which  obtain  among  gentlemen.  Of  necessity 
he  must,  to  some  extent,  mingle  with  his  brethren  of 
the  bar  in  a  social  way,  and  his  judicial  position  us- 
ually exerts  a  decided  influence  on  the  manner  in 
which  he  is  received.  But  while  a  due  courtesy  may 
always  be  shown  to  a  person  occupying  judicial  sta- 
tion, it  is  yet  contended  that  such  courtesy  has  its 
limitations  and  that  same  may  be  pushed  beyond  the 


RELATIONS  WITH   COURT.  185 

bounds  of  sound  ethical  precept.  Thus,  it  is  said, 
marked  attention  and  unusual  hospitality  to  a  judge, 
when  the  relations  of  the  parties  are  such  that  they 
would  not  otherwise  have  been  extended,  subject 
both  judge  and  attorney  to  hostile  criticism  and  pos- 
sible misconstruction  of  their  acts,  and  hence,  that 
same  should  be  sedulously  avoided.* 

301.  But  this,  while  expressing  a  true  sentiment, 
is  very  vague.  The  connection  between  the  bench 
and  bar  is,  and  always  has  been,  of  the  most  inti- 
mate character.  A  judge  loses  none  of  his  social  in- 
stincts by  assuming  the  ermine,  and  while  his  posi- 
tion is  changed  he  is  still  a  lawyer ;  and  even  though 
we  admit  that  a  self-respecting  independence  in  the 
discharge  of  an  attorney's  duties,  which  at  the  same 
time  does  not  withhold  the  courtesy  and  respect  due 
the  judge's  station,  is  the  only  just  foundation  for 
cordial  and  official  relations  between  bench  and  bar, 
yet  it  is  not  always  easy  to  draw  the  line  nor  to  say 
how  far  such  cordial  relations  may  extend.  A  pal- 
pable attempt  to  gain  special  personal  consideration 
and  favor  of  a  judge  is  mean  and  contemptible,  and 
the  judge  who  seems  to  lend  himself  to  such  an  at- 
tempt is  deserving  of  no  more  respect  than  the  at- 
torney, but  to  say  that  an  attorney  may  not  extend, 
and  a  judge  may  not  accept,  the  offices  of  fraternity, 
social  kindness  and  hospitality  is  going  too  far. 

302.  It  must  be  remembered,  however,  that  a 
lawyer,  like  Caesar's  wife,  must  be  above  suspicion. 

*  See,  Code  Ala,  Bar  Assn.  sec  3, 


l86  ESSAYS   IN   LEGAL  ETHICS. 

Not  only  must  he  practice  no  evil  but  he  must  as 
well  avoid  the  appearance  of  evil,  and  therefore  in 
his  social  relations  with  the  judge  he  must  ever  be 
circumspect  and  guarded.  While  this  is  a  rule  of 
conduct  for  all  occasions  it  applies  with  increased 
force  at  times  when  his  cases  are  pending. 

302a.  Thus  far  we  have  been  considering  our 
subject  with  special  reference  to  the  cordial  rela- 
tions that  may  subsist  between  bench  and  bar  and 
the  course  of  conduct  to  be  pursued  in  such  cases. 
There  is,  of  course,  another  side,  where  the  relation 
is  that  of  enmity.  As  a  rule,  no  question  can  arise 
with  respect  to  conduct  in  court,  even  where  the 
presiding  judge  may  be  an  object  of  contempt  or 
hatred.  Respect  for  the  judicial  office  must  over- 
come personal  dislike,  and  a  formal  courtesy,  at 
least,  must  be  shown.  But  how  about  conduct  out 
of  court?  Certainly  no  one,  lawyer  or  layman,  is 
compelled  to  fraternize  with  those  whom  he  detests. 
When  of¥  the  bench  the  judge,  in  most  things,  is  not 
distinguishable  from  other  men,  and  an  attorney 
commits  no  breach  of  decorum  by  ignoring  him  in  a 
social  way.  But  this  is  about  the  extent  to  which 
he  may  go.  The  obligation  which  an  attorney  as- 
sumes on  being  admitted  to  the  bar  is  not  dis- 
charged by  merely  observing  the  rules  of  courteous 
demeanor  in  open  court,  but  includes  abstaining  out 
of  court  from  all  overt  acts  calculated  to  bring 
odium  or  reproach  upon  the  profession  or  to  lower 
the  dignity  of  the  bench.     Therefore,  while  an  at- 


RELATIONS   WITH    COURT.  187 

torney  may  refuse  to  extend  social  amenities  to  a 
judge  he  must  not  indulge  in  insulting  language  or 
other  openly  offensive  conduct  toward  him  for  any 
of  his  judicial  acts.^ 

303.  Influencing  judges.  It  is  often  said, 
that  our  present  mode  of  selecting  judges  by  pop- 
ular election  is  conducive  to  bad  results  in  the  ad- 
ministration of  justice.  We  will  not  discuss  this 
matter,  but  every  lawyer  of  long  practice  knows 
from  his  own  experience  that,  too  often,  men  who 
are  proof  against  pecuniary  bribes  are  yet  suscepti- 
ble to  "influence."  It  is  the  duty  of  the  bar  to  min- 
imize this  evil  by  its  own  conduct.  It  is  gross 
impropriety  for  counsel  to  discuss  his  pending  cases 
with  the  judge  or  to  privately  argue  their  merits,  or 
to  address  to  him  private  communications  respect- 
ing his  causes  in  court.  It  is  equally  reprehensible 
to  permit  the  client  so  to  do,  or  to  secure  the  good 
offices  of  a  "mutual  friend,"  with  a  view  to  influence 
favorable  action.  An  attorney  who  resorts  to  such 
indecent  measures  forfeits  his  right  to  be  called  an 
honorable  practitioner,  and  a  judge  who  listens  to 
same  is  unworthy  of  his  high  ofhce. 

304.  Criticism  of  judges.     It  is  by  no  means 

uncommon  for  lawyers  to  discuss,  criticise  and  even 

condemn,  the  acts  and  decisions  of  the  courts,  and 

"Thus,  a  threat  of  personal  chastisement,  made  by  an  at- 
torney to  a  judge  out  of  court  for  his  conduct  or  rulings 
during  the  trial  of  a  cause  pending,  is  strictly  unprofessional 
and  furnishes  grounds  for  disbarment.  Bradley  v.  Fisher,  13 
Wall   (U.  S.)  335- 


l88  ESSAYS    IN   LEGAL   ETHICS. 

sometimes  to  unfavor?bly  comment  on  the  personal 
and  official  character  of  the  judges.  A  question, 
therefore,  arises  as  to  whether  conduct  of  this  kind 
will  constitute  such  misbehavior  as  to  violate  the 
spirit,  if  not  the  letter,  of  the  attorney's  oath  of 
office.  As  previously  remarked,  it  has  become  a 
maxim  of  legal  ethics  that  an  attorney  is  required 
to  maintain  at  all  times  the  respect  due  to  courts  of 
justice  and  judicial  officers.  This  is  not  only  the  re- 
ceived doctrine  of  the  common  law  but  has  also 
found  expression  in  statutory  enactments  relating 
to  professional  duty,  and  its  observance  is  enjoined 
on  all  who  assume  to  discharge  the  functions  of  an 
advocate.  But  it  must  further  be  remembered  that  a 
person  does  not  forfeit  his  constitutional  rights  as  a 
freeman  by  becoming  an  attorney,*^  and  that  free 
speech  is  as  much  secured  to  a  lawyer  as  to  any 
other  member  of  the  community.  To  what  extent, 
then,  may  an  attorney  criticise  the  private  character 
or  official  acts  of  the  judges  of  the  courts  of  which 
he  is  a  member  ? 

305.  It  is  conceded  that  in  matters  collateral  to 
official  duty  the  judge  is  on  a  level  with  the  mem- 
bers of  the  bar  as  he  is  with  his  fellow  citizens,  his 
title  to  distinction  and  respect  resting  on  no  other 
foundation  than  his  virtues  and  qualities  as  a  man.^ 
It  is  the  right  of  every  citizen  to  scrutinize  the 
character  and  conduct  of  men  acting  in  public  ca- 

*  Ex  parte  Steinman,  95  Pa.  St.  220. 
'Case  of  Austin,  5  Rawle   (Pa.)  191. 


RELATIONS   WITH    COURT.  189 

pacities.  An  attorney  in  this  respect  is  not  distin- 
guishable from  other  men.  Indeed,  it  would  seem 
that  it  is  not  only  the  right  but  the  duty  of  a  lawyer, 
to  bring  to  the  notice  of  the  people,  who  elect  the 
judges,  every  instance  of  what  he  believes  to  be  cor- 
ruption or  unfitness  for  office.  "No  class  of  the  com- 
munity," says  Sharswood,  C.  J.,  "ought  to  be  al- 
lowed freer  scope  in  the  expression  of  opinion  as  to 
the  capacity,  impartiality  or  integrity  of  judges  than 
m.embers  of  the  bar.  They  have  the  best  opportuni- 
ties of  observing  and  forming  a  correct  judgment, 
and  to  say  that  an  attorney  can  only  act  or  speak  on 
this  subject  under  liability  to  be  called  to  account 
by  the  very  judges  whom  he  may  consider  it  his 
duty  to  attack  and  expose,  is  a  proposition  too  mon- 
strous to  be  entertained  for  a  moment  under  our 
present  system."^  In  such  event  it  would  seem  the 
attorney  does  not  act  professionally  but  as  a  citizen, 
and  is  responsible  for  what  he  may  say  only  in  that 
capacity. 

306.  There  is  another  form  of  criticism  more 
frequently  indulged  in,  and  usually  with  entire 
propriety.  This  occurs  where  courts  have  rendered 
decisions  involving  questions  of  law.  It  is  conceded 
that  attorneys  may  freely  criticise  all  such  opinions, 
both  in  and  out  of  court,  at  the  time  the  decision  is 
rendered  and  ever  afterward,  without  violating  any 

8  Ex  parte  Steinman,  95  Pa.  St.  220;  and  see,  State  v.  An- 
derson, 40  Iowa,  207. 


I90  ESSAYS   IN   LEGAL  ETHICS. 

of  our  ethical  canons  or  subjecting  themselves  to 
discipline. 

307.  There  is  still  another  form  of  criticism, 
often  resorted  to  but  of  questionable  propriety.  It 
is  said  to  be  an  ancient  rule  of  the  lex  non  scripta 
that  every  defeated  litigant,  as  well  as  his  counsel, 
may  freely  "cuss"  the  court,  and  there  are  few  who 
fail  to  avail  themselves  of  this  privilege.  There  may 
be  occasions  when  criticism  of  this  kind  seems  justi- 
fiable, but  in  many  cases  it  is  a  mere  subterfuge,  de- 
signed to  quiet  the  client  and  his  friends  or  to  cover 
some  neglect,  oversight,  or  inefficiency  of  the  at- 
torney. Its  effect  is  always  bad,  and  it  should  be 
avoided  as  far  as  the  frailty  of  poor  human  nature 
will  admit. 

308.  It  would  seem,  then,  that  a  lawyer  may 
criticise  both  the  personal  and  official  character  of 
the  judge  as  well  as  his  acts  and  decisions,  but  he 
has  no  right  to  slander  either.  Notwithstanding  the 
lawyer's  civil  rights  he  is  still  bound  to  pay  proper 
respect  and  exhibit  a  proper  deference  to  the  judges 
both  in  and  out  of  court,^  and  even  though  we  admit 
that  judges  should  assist  the  bar  in  this  particular, 
by  being  themselves  respectable,  there  are  yet  many 
acts  which  fall  without  the  line  of  professional  func- 
tions by  which  professional  fidelity  may  be  violated. 
It  must  further  be  remembered  that  the  proprieties 
of  the  judicial  station  in  great  measure  disable  a 

»In  re  Brown,  3  Wyo.  121 ;  Bradley  v.  Fisher,  13  Wall.  (U. 
S.)  335- 


RELATIONS   WITH    COURT.  191 

judge  from  defending  himself  against  strictures 
upon  his  official  conduct,  and  for  this  reason,  and 
because  such  criticisms  tend  to  impair  public  con- 
fidence in  the  administration  of  justice,  it  is  said 
that  attorneys  should,  as  a  rule,  refrain  from  pub- 
lished criticism  of  judicial  conduct,  especially  in 
reference  to  causes  in  which  they  have  been  of 
counsel,  otherwise  than  in  courts  of  review,  or 
when  the  conduct  of  a  judge  is  necessarily  involved 
in  determining  his  removal  from  or  continuance  in 
office.^'^ 

309.  Deceiving  the  court.  It  has  ever  been 
deemed  gross  unprofessional  conduct  on  the  part  of 
an  attorney,  to  attempt  to  pollute  the  administration 
of  justice  by  a  resort  to  any  form  of  device  for  the 
purpose  of  preventing  the  decision  of  a  cause  upon 
its  merits  or  of  influencing  the  court  to  render  a 
decision  which  it  would  not  otherwise  have  made. 
This  will  include  every  species  of  deception  prac- 
ticed upon  the  court,  either  active  or  passive,  wheth- 
er by  statements  made  by  counsel  or  by  others  in  his 
presence,  or  by  testimony  known  to  be  false  or 
forged.  An  attorney  owes  to  his  client  a  duty  of 
fidelity  but  he  owes  the  same  duty  to  the  court ;  and 
it  is  a  part  of  that  duty  to  correctly  inform  the 
court  upon  the  law  and  the  facts  of  the  case  that  it 
may  arrive  at  correct  conclusions  and  render  exact 
justice.  He  violates  his  oath  of  office  when  he  re- 
sorts to  deception,  or  permits  his  client  to  do  so, 

1°  Code,  Ala.  Bar  Assn. 


192  ESSAYS   IN   LEGAL   ETHICS. 

and  by  such  acts  forfeits  his  rights  as  an  attorney.^  ^ 

310.  Misstatements  of  law  or  fact.  It  is 
one  of  the  ancient  duties  of  counsel  to  advise  the 
court  with  respect  to  the  law  of  the  particular  case 
in  which  he  appears.  Not  only  is  he  presumed  to  be 
well  informed  in  the  law  generally,  but  with  re- 
spect to  such  as  applies  to  the  particular  case  to 
have  made  a  special  study.  The  benefit  of  this 
study  he  imparts  to  the  court  for  its  guidance  in  ar- 
riving at  a  proper  determination  of  the  issues  in- 
volved. In  the  discharge  of  this  duty  counsel  is  re- 
quired to  exercise  the  utmost  candor  and  fairness 
and  to  avoid  everything  that  may  savor  of  deception. 
He  must  state  the  law  as  it  appears,  but  he  has  a 
right  to  place  such  construction  thereon  as  shall 
best  subserve  the  interests  of  his  client.  Indeed,  his 
duty  to  his  client  requires  this  course.  He  is  under 
no  obligation  to  present,  or  comment  upon,  those 
phases  of  the  law  that  may  seem  to  militate  against 
his  client's  cause,  and  he  may  combat  the  applica- 
tion of  such  adverse  law,  whether  advanced  by  the 
court  or  opposing  counsel.  These  rights  are  clear 
and  of  universal  recognition  in  all  courts  of  justice. 

311.  But  counsel  perpetrates  a  gross  fraud  upon 
the  court  when  he  knowingly  cites  as  authority  an 
overruled  case,  or  treats  as  if  still  in  force  a  repealed 
statute.     Fortunately  instances  of  this  kind  are  not 

"  People  V.  Beattie,  137  111.  553 ;  In  re  Henderson,  88  Tenn. 
531 ;  Baker  v.  State,  go  Ga.  153;  Ex  parte  Walls,  64  Ind.  461 ; 
In  re  Gale,  75  N.  Y.  526. 


RELATIONS   WITH    COURT.  193 

of  frequent  occurrence,  and  generally  where  such 
"authorities"  are  presented  it  is  due  either  to  ig- 
norance or  carelessness.  But  ignorance  and  care- 
lessness are  scarcely  less  culpable  than  willful  de- 
ception, and  are  almost  equally  reprehensible  as  pro- 
fessional traits. 

312.  An  even  more  flagrant  dereliction  Is  pre- 
sented when  counsel  garbles,  distorts  or  knowingly 
misquotes  the  language  of  a  statute,  decision  or 
text-book,  and  this  offense  is  by  no  means  uncom- 
mon. An  attorney  who  stoops  to  such  low  arti- 
fices not  only  deserves  the  severest  censure  but  is 
positively  unworthy  to  mingle  with  honest  men  in 
the  practice  of  law.  A  similar  infraction  of  the 
ethical  code  occurs  where  counsel  knowingly  mis- 
quotes the  contents  of  a  document,  the  testimony  of 
a  witness  or  the  language  or  argument  of  opposing 
counsel.  No  honorable  attorney  will  ever  be  guilty 
of  the  foregoing  or  kindred  deceitful  practices,  and 
persons  resorting  to  same  should  be  subjected  to  dis- 
cipline. 


CHAPTER  X. 
RELATIONS   WITH   THE   BAR. 

Character  of  the  relation — Professional  courtesy — Respect 
for  age — Observance  of  agreements — Services  for  at- 
torneys —  Interference  —  Substitution  of  attorneys — 
Conclusion. 

313.  Character  of  the  relation.  In  a 
former  part  of  this  book  the  writer  endeavored  to 
show  a  few  of  the  saHent  features  that  marked  the 
inauguration  of  the  order  of  advocates  in  England, 
and  to  point  out  some  of  the  distinguishing  charac- 
teristics of  same.  From  these  it  will  readily  be  per- 
ceived that  the  advocates  were  not  simply  members 
of  a  learned  profession  but  of  a  distinct  order  of  so- 
ciety, established  by  civil  authority,  constituting  a 
fraternity  with  settled  rules  and  usages.  In  the 
flow  of  time  and  the  changing  conditions  of  society 
many  of  the  ancient  characteristics  have  been  lost, 
but  this  essential  idea  has  remained  intact  and  the 
bar  is  still  known,  both  among  its  own  members  and 
the  public,  as  the  "legal  fraternity."  It  follows, 
therefore,  that  the  relations  subsisting  between  the 
members  of  the  bar  are,  or  should  be,  those  of  amity, 
good  will,  and  mutual  esteem.  Notwithstanding 
that  they  are  often  arrayed  against  each  other  as 
champions  of  opposing  forces,    their    intercourse 

194 


RELATIONS   WITH   THE    BAR.  195 

should  yet  be  friendly,  and,  as  partakers  in  a  com- 
mon enterprise,  the  honor  and  reputation  of  every 
member  should  be  the  cause  of  all. 

314.  Professional  courtesy.  The  profes- 
sional relation  which  attorneys  sustain  toward  each 
other  in  all  matters  of  litigation  is  distinctly  antag- 
onistic. Indeed,  it  could  not  well  be  otherwise  save 
in  exceptional  cases.  They  represent  diverse  and 
opposing  interests,  and  their  duties  to  their  respect- 
ive clients  require  an  entire  devotion  to  the  cause  in 
which  they  are  retained.  To  the  maintenance  of 
such  cause  they  are  expected  to  contribute  every  ex- 
ertion of  skill  and  ability,  and  nothing,  as  a  rule, 
can  absolve  them  from  the  fearless  discharge  of  this 
duty. 

315.  But  it  does  not  follow  that  because  of  this 
duty  there  should  be  that  total  disregard  of  the 
amenities  of  life  which  so  often  characterizes  op- 
posing forces.  It  is  the  clients,  not  the  attorneys, 
who  are  the  litigants;  and  whatever  may  the  ill- 
feeling  existing  between  clients,  it  is  unprofessional 
for  the  attorneys  to  partake  of  it,  or  to  manifest  in 
their  conduct  and  demeanor  to  each  other  or  to  the 
suitors  on  the  opposite  side,  any  of  the  rancor  or 
bitterness  of  the  parties.  The  ordinary  civilities 
should  always  be  studiously  observed,  and,  in  every 
instance,  the  utmost  courtesy  consistent  with  duty 
should  be  extended  to  an  honorable  opponent. 

316.  Aside  from  the  conventional  rules  that  reg- 
ulate the  conduct  of  gentlemen  between  themselves, 


196  ESSAYS   IN   LEGAL   ETHICS. 

there  are  other  matters  which  arise  out  of  the  pro- 
fessional character  and  are  pecuHar  to  the  attorney's 
office.  These  we  may  classify  under  the  general 
head  "professional  courtesy."  There  are  no  rules, 
however,  by  which  the  majority  of  these  matters  can 
be  determined,  nor  even  a  settled  observance.  They 
are  allowed,  in  the  main,  to  rest  in  individual  discre- 
tion, for  the  exercise  of  which  the  attorney  is  not 
required  to  account.  This  will  include  all  incidental 
matters  pending  trial,  not  affecting  the  merits  of 
the  cause  or  working  substantial  prejudice  to  the 
rights  of  the  client,  such  as  forcing  the  opposite  at- 
torney to  trial  when  he  is  under  affliction;  forcing- 
trial  on  a  particular  day  to  the  serious  injury  of  op- 
posing counsel,  when  no  harm  would  result  from 
setting  the  trial  for  a  different  time;  extending  the 
time  for  pleading,  for  signing  a  bill  of  exceptions, 
and  the  like.  In  all  these  matters  it  is  customary  to 
grant  the  favor  sought  as  a  professional  courtesy, 
but  no  ethical  obligation  requires  it,  and  in  the  few 
cases  where  bar  associations  have  ventured  to  ex- 
press an  opinion  it  has  generally  been  left  in  the 
discretion  of  counsel,  and  of  the  propriety  or  im- 
propriety of  the  transaction  he  is  allowed  to  be  the 
sole  judge. 

317.  It  has  been  said  that  no  client  has  a  right 
to  demand  that  his  attorney  be  illiberal  in  such 
matters,  and  that  an  attorney  is  not  required  to  do 
anything  in  respect  to  same  that  is  repugnant  to  his 
own  sense  of  honor  and  propriety,  and    if    such 


RELATIONS   WITH   THE   BAR.  197 

course  is  insisted  on  that  counsel  should  retire  from 
the  case.^2  g^^  tj^is,  in  the  opinion  of  the  writer, 
does  not  state  the  true  rule,  and  certainly  does  not 
represent  the  general  practice.  It  is  a  client's  right 
to  have  his  cause  tried  at  the  time  set,  to  have  ad- 
verse pleadings  filed  within  the  time  allowed,  and  to 
insist  that  his  attorney  shall  take  every  legal  ad- 
vantage the  case  may  afford,  and  this  duty  an  at- 
torney may  not  capriciously  avoid  nor  is  he  at  lib- 
erty to  withdraw  from  the  case  merely  because  his 
client  insists  upon  the  strict  observance  of  his  rights. 
Whatever  the  feelings  of  counsel  may  be  toward  the 
counsel  for  the  other  side,  and  however  much  he 
may  desire  to  accommodate  him  in  matters  of  prac- 
tice, he  is  yet  under  a  paramount  duty  to  follow  his 
client's  instructions  in  all  matters  pertaining  to  the 
legitimate  conduct  of  the  litigation. 

318.  Respect  for  age.  A  true  lawyer  is  al- 
ways a  gentleman.  A  gentleman  always  exhibits  a 
proper  respect  for  age,  and  nothing,  perhaps,  more 
surely  indicates  good  breeding.  "No  young  man," 
says  one  writer,  "can  prosper  in  his  profession  who 
is  unmindful  of  due  respect  to  his  seniors  at  the 
bar.  He  that  is  so  breaks  down  his  own  safety  and 
dignity,  should  he  live  to  be  old ;  in  respecting  them 
he  respects  himself.  Flippancy,  frowardness,  ex- 
hibited by  the  youthful  toward  the  aged  barrister,  is 
a  mark  of  vulgarity,  which  must  ever  disgust  those 
whose  good  opinion  and  support  are  worth  preserv- 

^2  Code,  Ala.  Bar  Assn.  sec.  30. 


198  ESSAYS   IN    LEGAL   ETHICS. 

ing.  We  speak  now  not  of  comparative  talents  but 
simply  of  years,  or  stages  in  life."^^  The  foregoing 
excerpt  is  commended  to  the  thoughtful  considera- 
tion of  every  young  practitioner.  This  is  an  age 
of  aggressive  self-assertion,  and  American  youth 
are  educated  upon  these  lines.  I  would  not  for  a 
moment  repress  a  laudable  ambition  that  urges  on 
the  young  advocate  to  forensic  honors  and  triumphs, 
and  will  heartily  join  in  the  applause  that  greets 
the  victor  who,  in  a  fair  fight,  has  met  and  over- 
come his  senior.  But,  it  is  nauseating  in  the  ex- 
treme to  see  a  callow  youth,  blinded  by  excessive 
egotism,  who  so  far  forgets  the  common  amenities 
of  life  as  to  offer  discourtesies  to  age.  Modesty  in- 
variably bespeaks  merit.  Learning  and  skill  are  not 
in  any  way  handicapped  or  impeded  by  a  decorous 
demeanor,  and  standing  at  the  bar  can  never  be 
acquired  by  a  supercilious  treatment  of  opposing 
counsel,  be  they  young  or  old. 

319.  Observance  of  agreements.  In  the  ac- 
tive practice  of  law  attorneys  are  necessarily  obliged 
to  make  many  agreements,  stipulations  and  engage- 
ments. Some  of  these  are  made  in  open  court,  and, 
becoming  a  part  of  the  record,  are  enforcible  in  any 
event.  But  many  are  made  out  of  court,  and  in 
such  a  manner  as  to  be  binding  only  in  conscience. 
These  latter  are  based  on  the  mutual  respect  of  the 
contracting  parties  for  each  other  and  the  confi- 
dence they  respectively  feel  in  the  other's  integrity. 

^"  Brown's,  Forum.  Vol.  2,  p.  48. 


RELATIONS   WITH   THE   BAR.  199 

To  inspire  and  retain  this  feeling  on  the  part  of  his 
confreres  should  be  a  prime  object  with  every  prac- 
titioner, for,  as  has  been  well  said,  "a  very  great 
part  of  a  man's  comfort,  as  well  as  of  his  success  at 
the  bar,  depends  upon  his  relations  with  his  profes- 
sional brethren."--^ 

320.  To  attain  this  end  it  is  imperative  that 
every  engagement  be  punctually  kept,  that  every 
agreement  be  faithfully  performed,  and  that  every 
stipulation  be  fairly  and  honestly  carried  out.  The 
man  who  thus  acquires  the  reputation  of  scrupulous 
exactness  in  all  matters  involving  professional  con- 
fidence will  find  that  many  of  the  asperities  of  prac- 
tice will  be  softened,  that  many  of  its  amenities  will 
be  voluntarily  tendered,  and  that,  in  the  general 
good  will,  esteem,  and  respect  of  his  fellow  prac- 
titioners, he  will  experience  a  sense  of  pleasure  that 
nothing  else  can  create. 

321.  It  is  an  easy  matter  sometimes  to  repu- 
diate engagements  made  ''in  pais,"  and  to  deny 
promises  so  given.  The  momentary  advantage  may 
blind  the  moral  vision,  and  because  no  summary 
punishment  follows  the  counsel  has  no  fear.  But 
once  let  a  man's  truthfulness  be  even  suspected  his 
path  becomes  a  thorny  one,  and  where  his  falsehood 
and  duplicity  is  established  he  becomes  a  profes- 
sional outcast.  No  one  will  trust  him,  even  though 
he  is  acting  honestly,  and  if  he  is  at  all  sensitive  he 
is  continually  chagrined  and  mortified  by  the  pre- 

1*  Sharswood,  Legal   Ethics,   72- 


200  ESSAYS    IN    LEGAL   ETHICS. 

cautions  taken  by  those  who  are  thrown  in  contact 
with  him. 

322.  Services  for  attorneys.  Lawyers  are 
frequently  called  upon  to  render  services  for  each 
other,  both  in  personal  matters  and  suits  of  clients. 
Should  compensation  be  demanded  for  such  serv- 
ices or  should  they  be  regarded  as  professional 
courtesies  for  which  no  reward  is  expected?  It 
would  seem  that  in  '  former  days  no  charge  was 
made  for  a  service  of  this  kind,  and  this,  to  some 
extent,  is  the  prevailing  practice  at  present.  The 
general  sentiment  would  seem  to  be  that  casual  and 
slight  services  should  be  rendered  by  one  attorney 
to  another  without  charge,  particularly  in  his  per- 
sonal cause,  but  when  the  service  goes  beyond  this 
an  attorney  may  be  charged  the  same  as  other 
clients.^  ^  It  has  further  been  declared  that  ordinary 
advice  and  services  to  the  family  of  a  deceased 
attorney  should  be  rendered  without  charge  in  most 
instances;  and  that  where  the  circumstances  make 
it  proper  to  charge,  the  fees  should  generally  be  less 
than  in  case  of  other  clients.^  ^  This  is  in  keeping 
with  the  ancient  traditions  of  the  bar,  and  the  only 
consistent  course  among  the  members  of  a  class  that 
calls  itself  a  fraternity  and  professes  for  each  other 
a  fraternal  regard. 

323.  Suits  against  attorneys.  A  retainer 
may  properly  be  accepted  in  a  suit  against  an  attor- 

1^  Graydon  v.  Stakes,  24  S.  C.  483. 
1*  Code,  Ala.  Bar  Assn.  sec.  52. 


RELATIONS    WITH    THE    BAR.  201 

ney,  yet,  as  a  rule,  it  should  be  received  reluctantly 
and  the  matter  settled,  if  possible,  in  an  amicable 
manner.  The  principle  of  professional  fraternity, 
as  far  as  it  will  apply,  should  characterize  all  pro- 
ceedings of  this  nature,  particularly  where  no  moral 
turpitude  is  involved.  This  has  long  been  the  set- 
tled rule  of  the  ethical  code  and  is  still  in  force, 
notwithstanding  its  non-observance  by  the  legal 
tradesmen. 

324.  Interference.  It  is  a  maxim  of  trade 
that  every  man  is  at  liberty  to  compete  for  business 
in  the  open  market  and  to  secure  customers  where- 
ever  and  however  he  can,  without  regard  to  others. 
This  spirit  seems,  to  some  extent,  to  have  entered 
the  legal  profession,  and  the  methods  of  the  com- 
mercial world  are  frequently  employed  by  men  who 
claim  to  represent  "advanced"  ideas  in  the  transac- 
tion of  legal  business.  But  the  lawyer  is  not  a  trades- 
man, neither  do  the  maxims  of  commerce  apply  to 
his  profession.  He  may  not  resort  to  many  things 
that  the  vendor  of  wares  may  do  with  impunity,  and, 
among  these  we  find  the  enticement  of  clients. 
An  attorney  who  interferes,  directly  or  indirectly, 
with  the  professional  relations  subsisting  between 
other  attorneys  and  their  clients  commits  a  gross 
violation  of  the  long-established  etiquette  of  the  bar. 
Nothing,  perhaps,  more  distinctly  stamps  the  char- 
acter of  the  shyster,  than  offers  of  service  or  advice 
in  pending  matters  then  being  conducted  by  other 
counsel ;  and  nothing  more  unmistakably  betrays  the 


202  ESSAYS   IN   LEGAL   ETHICS. 

narrow  and  unprincipled  man,  than  voluntary  criti- 
cisms of  the  acts  of  a  party's  attorney.  Therefore, 
the  honorable  and  self-respecting  practitioner  will 
never  voluntarily  tender  his  services  nor  obtrude  his 
advice  in  a  matter  of  this  kind,  and,  if  appealed  to, 
will  be  most  conservative  in  his  utterances  and 
guarded  in  his  expressions. 

325.  Substitution  of  attorneys.  With  re- 
spect to  the  substitution  of  attorneys  there  has 
always  existed  a  most  punctilious  etiquette.  As  a 
rule,  the  client  is  at  liberty  to  dismiss  his  attorney, 
and  to  procure  another  in  his  place,  at  his  mere 
pleasure.^''^  Nor  does  the  second  attorney  violate 
any  principle  of  professional  courtesy  simply  by 
accepting  a  retainer  under  such  circumstances.  But, 
if  he  shall  suggest  the  change,  or  actively  and 
directly  influence  the  client  in  making  same,  except 
under  very  extraordinary  circumstances,  he  com- 
mits an  act  unworthy  of  any  honorable  practitioner. 

326.  It  will  often  happen  that  a  client  becomes 
dissatisfied  with  his  legal  adviser  for  no  just  cause, 
or  through  some  caprice,  or  for  some  fancied  neglect 
or  inattention.  In  such  event  he  applies  to  other 
counsel  with  a  recital  of  his  attorney's  failings  or 
misdeeds.  Under  such  circumstances  the  counsel 
thus  applied  to  should  in  an  honest  and  manly  way 
inform  the  client  that  his  fears  are  unfounded,  and 

"Re  Paschal,  10  Wall  (U.  S.)  483;  Ogden  v.  Devlin,  45 
K.  Y.  Sup.  Ct.  631 ;  and  see,  Knox  v.  Randall,  24  Minn.  479. 


RELATIONS   WITH    THE    BAR.  203 

that  his  attorney  is  faithfully  discharging  his  duty. 
There  is  no  other  course  consistent  with  honorable 
professional  character  or  fair  dealing,  and  a  man 
who  acts  otherwise  must  not  only  sink  in  his  own 
estimation  but  in  the  estimation  of  all  of  his  pro- 
fessional brethren  to  whom  the  facts  shall  become 
known. 

327.  But,  as  before  remarked,  it  is  a  privilege 
of  the  client  to  change  his  counsel  in  his  own  dis- 
cretion, and,  if,  in  the  exercise  of  this  privilege, 
he  applies  to  another  and  tenders  a  retainer,  such 
retainer,  in  a  proper  case,  may  be  accepted.  If, 
upon  such  offer,  it  shall  appear  that  the  original 
attorney  has  a  contingent  interest  in  the  case,  or 
if  there  are  unpaid  fees,  which  in  justness  he  should 
receive,  or  if  there  are  any  other  unsettled  matters 
growing  out  of  the  relations  of  the  parties  that 
would  be  prejudiced  by  such  change,  then  there  is 
a  duty  incumbent  on  the  second  attorney  to  see  that 
all  of  these  matters  are  satisfactorily  adjusted  be- 
fore he  assumes  charge,  and  in  the  event  of  the 
client's  refusal  he  should  decline  the  retainer.  This 
has  been  the  uniform  practice  of  all  respectable  at- 
torneys from  time  immemorial,  and  its  strict  observ- 
ance is  not  only  in  consonance  with  good  morals, 
but  indispensable  to  the  preservation  of  that  feeling 
of  fellowship  and  fraternity  which  should  always 
characterize  the  bar. 

328.  Where  there  has  been  a  palpable  misman- 


204  ESSAYS    IN    LEGAL   ETHICS. 

agement  by  the  original  attorney,  involving  no 
moral  turpitude,  while  the  circumstances  may  de- 
mand an  immediate  and  summary  change  of  coun- 
sel, yet  this  should  be  accomplished  in  a  courteous 
manner  and  the  unsettled  matters  between  the  par- 
ties may  be  left  for  subsequent  adjustment.  Where 
the  facts  disclose  unmistakable  dishonesty,  or  gross 
derelictions,  on  the  part  of  the  attorney,  he  is  en- 
titled to  no  considerations  of  respect  and  may  be 
treated  the  same  as  any  other  violator  of  confidence. 

329.  Where  the  client  has  seen  fit  to  change  his 
counsel,  and  has  discharged  his  pecuniary  and  other 
obligations  to  his  original  attorney,  such  attorney, 
upon  request  made,  should  deliver  over  to  the  sec- 
ond attorney  all  documents  and  papers  in  his  pos- 
session that  rightfully  pertain  to  the  case,  and  sign 
a  consent  for  substitution  on  the  record  if  the  case 
is  then  pending  in  court.  He  may  properly  with- 
hold such  papers  as  relate  only  indirectly  to  the 
matter,  as  briefs  of  authorities,  order  of  proof,  etc., 
or  may  demand  an  additional  compensation  for 
them  in  case  they  are  desired.  But  in  no  event 
would  he  be  justified  in  withholding  information 
proper  to  be  communicated  or  necessary  to  be  known 
by  the  second  attorney. 

330.  Conclusion.  The  foregoing  pages  but 
imperfectly  present  a  few  of  the  many  phases  of 
professional  conduct,  and  the  course  that  should  be 
pursued  under  given  circumstances.     As  remarked 


RELATIONS   WITH    THE    BAR.  205 

at  the  beginning,  to  prescribe  minute  and  detailed 
specifications  of  an  attorney's  duties  upon  all  occa- 
sions is  an  impossible  task;  nor  are  such  specifica- 
tions necessary.  No  more  has  been  attempted  than 
the  recital  of  a  few  broad  precepts,  a  few  well-set- 
tled general  rules,  and  a  few  confirmed  usages.  The 
attorney's  own  moral  sense  must  supply  the  rule  for 
the  particular  case  whenever  the  necessity  for  it  may 
arise. 

331.  The  exercise  of  the  advocate's  profession 
is  attended  with  many  temptations  and  dangers,  and 
none  but  the  morally  strong  may  withstand  them. 
But,  to  the  really  good  man,  its  practice  brings  re- 
newed strength,  courage,  prudence,  and  fortitude. 
The  advocate's  profession  has  ever  been  considered 
one  of  honor,  but  to  be  so  in  fact  it  must  be  one  of 
virtue.  Fidelity  is  its  great  characteristic;  truth- 
fulness is  its  inseparable  incident;  sympathy  is  its 
underlying  principle.  Indeed,  it  has  been  said  that 
the  chief  excellence  of  the  advocate  is  in  proportion 
to  the  facility  with  which  he  can  become  a  party  in 
the  most  momentous  concerns  of  strangers,  and 
identify  his  own  existence,  for  the  time,  with  the 
crises  of  alien  fortunes.  The  very  practice  of  rep- 
resenting the  feelings  of  others  is,  at  least,  one 
remove  from  self-love,  and,  however  far  from 
approaching  the  comprehensiveness  of  true  human- 
ity, breaks  the  crust  of  selfishness  which  courses  of 
worldly  success  in  other  occupations  too  often  en- 


2o6  e:ssays  in  legal  ethics. 

gender.  Nor  is  a  pliancy  of  character  thus  fostered 
unfavorable  to  the  maintenance  of  personal  con- 
sistency, for,  to  the  properly  trained  mind,  the  very 
habit  of  rapidly  passing  from  one  range  of  sym- 
pathies to  another  begets  an  earnest  aspiration  after 
conditions  which  are  stable  and  enduring,  and  but 
fixes  the  roots  of  individual  principles  deeper. 


APPENDIX. 


SIR   MATTHEW    HALE  S  RULES. 

In  the  year  1660,  Sir  Matthew  Hale  was  ap- 
pointed Chief  Baron  of  the  Exchequer,  on  which 
occasion  he  laid  down  a  series  of  rules  for  the  gov- 
ernment of  his  conduct,  that,  Lord  Campbell  said, 
"Ought  to  be  inscribed  in  letters  of  gold  on  the 
walls  of  Westminster  Hall,  as  a  lesson  to  those 
entrusted  with  the  administration  of  justice." 
While  they  refer  to  the  judicial  office  they  have  yet 
a  significance  for  the  bar,  and  writers  upon  legal 
ethics  have,  in  many  instances,  incorporated  them 
in  their  works.    The  rules  are  as  follows : 

"Things  necessary  to  be  continually  had  in  remembrance. 

"i.  That  in  the  administration  of  Justice,  I  am  intrusted 
for  God,  the  king,  and  country;  and,  therefore, 

"2.  That  it  be  done,  i,  uprightly;  2,  deliberately;  3,  reso- 
lutely. 

"3.  That  I  rest  not  upon  my  own  understanding  or 
strength,  but  implore  and  rest  upon  the  direction  and 
strength  of  God. 

"4.  That  in  the  execution  of  justice  I  carefully  lay  aside 
207 


2o8  APPENDIX. 

my  own  passions,  and  not  give  way  to  them,  however  pro- 
voked. 

"5.  That  I  be  wholly  intent  upon  the  business  I  am  about, 
remitting  all  other  cares  and  thoughts  as  unseasonable,  and 
interruptions. 

"6.  That  I  sufifer  not  myself  to  be  prepossessed  with  any 
judgment  at  all,  till  the  whole  business  and  both  parties  be 
heard. 

"7.  That  I  never  engage  myself  in  the  beginning  of  any 
cause,  but  reserve  myself  unprejudiced  till  the  whole  be  heard. 

"8.  That  in  business  capital,  though  my  nature  prompt 
me  to  pity,  yet  to  consider  there  is  a  pity  also  due  to  the 
country. 

"9.  That  I  be  not  too  rigid  in  matters  purely  conscientious, 
where  all  the  harm  is  diversity  of  judgment. 

"10.  That  I  be  not  biassed  with  compassion  to  the  poor, 
or  favor  to  the  rich,  in  point  of  justice. 

"11.  That  popular  or  court  applause,  or  distaste,  have  no 
influence  in  anything  I  do,  in  point  of  distribution  of  justice. 

"12.  Not  to  be  solicitous  what  men  will  say  or  think,  so 
long  as  I  keep  myself  exactly  according  to  the  rule  of  justice. 

"13.  If  in  criminals  it  be  a  measuring  cast,  to  incline  to 
mercy  and  acquittal. 

"14.  In  criminals  that  consist  merely  in  words,  where  no 
more  harm  ensues,  moderation  is  no  injustice. 

"15.  In  criminals  of  blood,  if  the  fact  be  evident,  severity 
is  justice. 

"16.  To  abhor  all  private  solicitations,  of  what  kind  so- 
ever, and  by  whomsoever,  in  matters  depending. 

"To  charge  my  servants — i.  Not  to  interpose  in  any  mat- 
ter whatsoever ;  2,  Not  to  take  more  than  their  known  fees ; 
3,  Not  to  give  any  undue  precedence  to  causes ;  4,  Not  to 
recommend  counsel. 

"18.  To  be  short  and  sparing  at  meals,  that  I  may  be  the 
fitter  for  business." 

In  1 67 1,  Hale  was  appointed  Lord  Chief  Justice 
of  the  Court  of  Kings  Bench.    After  he  had  occu- 


APPENDIX.  209 

pied  this  position  for  about  four  years  he  was  seized 
with  an  inflammatory  attack  from  which  he  never 
recovered.  During  this  ilhiess  he  determined  to 
resign,  but  previous  to  taking  so  important  a  step 
he  composed  the  following  meditation  on  the  aspect 
of  his  affairs  •} 

"If  I  consider  the  business  of  my  profession,  whether  as 
an  advocate  or  as  a  judge,  it  is  true  I  do  acknowledge  by 
the  institution  of  Almighty  God,  and  the  dispensation  of  His 
providence,  I  am  bound  to  industry  and  fidelity  in  it.  And  it 
is  an  act  of  obedience  unto  His  will,  it  carries  with  it  some- 
thing of  religious  duty,  and  I  may  and  do  take  comfort  in  it, 
and  expect  a  reward  of  my  obedience  to  Him  and  the  good 
that  I  do  to  mankind  therein  from  the  bounty  and  beneficence 
and  promise  of  Almighty  God;  and  it  is  true  also,  that  with- 
out such  employments  civil  societies  cannot  be  supported, 
and  great  good  redounds  to  mankind  from  them,  and  in  these 
respects  the  conscience  of  my  own  industry,  fidelity,  and 
integrity  in  them,  is  a  great  comfort  and  satisfaction  to  me. 
But  yet  I  must  say,  concerning  these  employments,  considered 
simply  in  themselves,  they  are  very  full  of  cares,  anxieties, 
and  perturbations.  2dly.  That  though  they  are  beneficial 
to  others,  yet  they  are  of  the  least  benefit  to  him  that  is  em- 
ployed in  them.  3dly.  They  do  necessarily  involve  the  party 
whose  office  it  is  in  great  dangers,  difficulties,  and  calumnies. 
4thly.  That  they  only  serve  for  the  meridian  of  this  life, 
which  is  short  and  uncertain.  Sthly.  That  though  it  be  my 
duty  faithfully  to  serve  in  them  while  I  am  called  to  them, 
and  till  I  am  duly  called  from  them,  yet  they  are  great  con- 
sumers of  that  little  time  we  have  here,  which,  as  it  seems  to 
me,  might  be  better  spent  in  a  pious  contemplative  life,  and 
a  due  provision  for  eternity." 

*  See,  Campbell's,  Lives  of  the  Chief  Justices. 


2IO  APPENDIX. 

B. 

CHIVALRY   OF    ADVOCACY. 

Mr.  Forsyth,  in  his  interesting  history  of  advo- 
cacy, has  shown  the  chivalric  sentiment  that  per- 
meated the  old  French  Bar.  This,  however,  seems 
in  some  measure  to  have  been  the  result  of  positive 
regulations,  for  the  French  advocate,  unlike  his 
brother  in  England,  was  not  left  entirely  to  his  own 
discretion  in  matters  of  professional  morality.  The 
practice  was  regulated  by  frequent  royal  edicts,  and 
conformity  thereto  was  enforced  under  pain  of 
being  disbarred.  In  time  these  matters  assumed 
the  shape  of  a  code,  which  remained  in  force  until 
the  revolution  in  1790,  when  the  order  of  advocates, 
along  with  other  institutions,  was  abolished. 
Among  the  prohibitions  and  restraints  to  which  the 
old  French  lawyer  was  subjected  we  find  the  fol- 
lowing : 

"i.  He  was  not  to  undertake  just  and  unjust  causes  alike, 
without  distinction ;  nor  maintain  such  as  he  undertook  with 
trickery,   fallacies,   and  misquotations  of  authorities. 

"2.  He  was  not  in  his  pleadings  to  indulge  in  abuse  of  the 
opposite  party  or  his  counsel. 

"3.  He  was  not  to  compromise  the  interests  of  his  clients, 
by  absence  from  court  when  the  cause  in  which  he  was  re- 
tained was  called  on. 

"4.  He  was  not  to  violate  the  respect  due  to  the  Court, 
by  either  improper  expressions  or  unbecoming  gestures. 

"5.  He  was  not  to  exhibit  a  sordid  avidity  of  gain,  by 
putting  too  high  a  price  upon  his  services. 


APPENDIX.  211 

"6.  He  was  not  to  make  any  bargain  with  his  client  for  a 
share  in  the  fruits  of  the  judgment  he  might  recover. 

"7.  He  was  not  to  lead  a  dissipated  life,  or  one  contrary 
to  the  modesty  and  gravity  of  his  calling. 

"8.  He  was  not,  under  pain  of  being  disbarred,  to  refuse 
his  services  to  the  indigent  and  oppressed.." 

Commenting  upon  the  foregoing  Mr.  Forsyth 
says: 

"Throughout  these  rules  we  see  that  the  analogy  of  knight- 
hood is  preserved,  and  the  last  breathes  the  very  spirit  of 
chivalry.  Purity  of  life,  and  disinterested  zeal  in  the  cause 
of  the  poor  and  friendless,  were  enjoined  upon  the  cavalier 
and  advocate  alike ;  and  doubtless  the  resemblance  between 
the  two  professions,  of  which  the  latter  was  thus  reminded, 
had  a  powerful  effect  in  producing  a  tone  of  high-minded 
feeling,  which  ought  ever  to  be  the  characteristic  of  the  Bar. 
But  sometimes  this  resemblance  was  carried  further  than  was 
either  safe  or  agreeable,  and  the  advocate  had  to  perform  a 
warlike  office,  not  in  a  figurative,  but  a  literal  sense.  I  allude 
to  the  appeal  or  wager  of  battle,  whereby  the  sword  was 
made  the  arbiter  of  disputes,  and  sanguinary  duels  were 
solemnly  sanctioned  by  Courts  of  law." 


c. 

DEFENSE   OF    COURVOISIER. 

In  the  year  1840  there  occurred  in  England  a 
remarkable  criminal  trial  in  which  were  developed 
several  principles  of  legal  ethics  that  have  ever 
since  continued  to  secure  a  recognition  by  the 
bar.  A  man  named  Courvoisier  was  arraigned 
for    the    murder    of    his    master,    Lord    Russell. 


212  APPENDIX. 

He  was  defended  by  a  Mr.  Phillips.  During  the 
course  of  the  trial  Courvoisier  confessed  his  guilt  to 
his  counsel,  who,  notwithstanding,  continued  the 
defense.  The  conduct  of  Mr.  Phillips  was  severely 
criticised,  and  the  case  was  the  subject  of  much 
comment  at  the  time.  Several  years  afterwards  the 
matter  was  again  brought  into  publicity  by  a  news- 
paper attack.  This  led  to  a  published  statement  by 
Phillips,  of  the  circumstances  attending  the  trial, 
from  which  is  extracted  the  following : 

"It  was  on  the  second  morning  of  the  trial,  just  before  the 
judges  entered,  that  Courvoisier,  standing  publicly  in  front 
of  the  dock,  solicited  an  interview  with  his  counsel.  My 
excellent  friend  and  colleague,  Mr.  Clarkson  and  myself,  im- 
mediately approached  him.  I  beg  of  you  to  mark  the  pres- 
ence of  Mr.  Clarkson,  as  it  will  become  very  material  pres- 
ently. Up  to  this  morning  I  believed  most  firmly  in  his 
innocence;  and  so  did  many  others  as  well  as  myself.  'I 
have  sent  for  you,  gentlemen,'  said  he,  'to  tell  you  I  com- 
mitted the  murder !'  When  I  could  speak,  which  was  not 
immediately,  I  said :  'Of  course,  then,  you  are  going  to 
plead  guilty?'  'No,  sir,'  was  the  reply;  'I  expect  you  to  de- 
fend me  to  the  utmost.'  We  returned  to  our  seats.  My 
position  at  this  moment  was,  I  believe,  without  parallel  in 
the  annals  of  the  profession.  I  at  once  came  to  the  resolution 
of  abandoning  the  case,  and  so  I  told  my  colleague.  He 
strongly  and  urgently  remonstrated  against  it,  but  in  vain. 
At  last  he  suggested  our  obtaining  the  opinion  of  the  learned 
judge  who  was  not  trying  the  cause  upon  what  he  considered 
to  be  the  professional  etiquette  under  circumstances  so  em- 
barrassing. In  this  I  very  willingly  acquiesced.  We  obtained 
an  interview,  when  Mr.  Baron  Parke  requested  to  know  dis- 
tinctly whether  the  prisoner  insisted  on  my  defending  him ; 
and,  on  hearing  that  he  did,  said  I  was  bound  to  do  so,  and 
to  use  all  fair  arguments  arising  on  the  evidence.    I  therefore 


APPENDIX.  213 

retained  the  brief ;  and  I  contended  for  it,  that  very  argument 
I  used  was  a  fair  commentary  on  the  evidence,  though  un- 
doubtedly as  strong  as  could  I  make  them.  I  believe  there  is 
no  difference  of  opinion  now  in  the  profession  that  this 
course  was  right.  It  was  not  till  after  eight  hours  of  my 
public  exertion  before  the  jury  that  the  prisoner  confessed ; 
and  to  have  abandoned  him  then  would  have  been  virtually 
surrendering  him  to  death." 

The  general  sentiment  of  the  profession  has  fully 
sustained  the  counsel  in  the  position  he  assumed,  of 
retaining  the  brief,  after  learning  of  his  client's 
guilt,  and  the  practice  has  since  been  followed,  both 
in  England  and  America.  It  is  contended,  in  sup- 
port of  this  position,  that  no  advocate,  who  has 
accepted  a  retainer  to  defend  a  person  charged  with 
crime,  is  at  liberty  to  break  his  contract  because  he 
finds  the  prisoner  to  be  guilty ;  that  it  is  no  part  of 
such  contract  that  the  prisoner  is  innocent;  that 
guilty  men  have  the  same  right  to  be  defended  as 
others,  and  that  this  right  is  only  in  furtherance  of 
public  justice,  which  demands  that  no  one  shall  be 
convicted,  except  on  legal  and  sufficient  eviden 

The  advice  given  to  Mr.  Phillips  by  Baron  Parke 
has  also  become  the  standard  of  professional  duty 
in  a  case  of  this  kind,  and  counsel  is  bound  to  "use 
all  fair  arguments  arising  on  the  evidence."  But 
even  this  rule  must  be  qualified  in  some  respects, 
for  it  is  possible  to  keep  within  it  and  yet  to  violate 
the  precepts  of  righteous  conduct.  This,  it  is  said 
by  his  detractors,  is  just  what  Phillips  did.  It  would 
seem  that  previously  to  Courvoisier's  confession,  and 


214  APPENDIX. 

while  the  evidence  was  of  a  very  inconckisive  char- 
acter, he  had  pursued  a  Hne  of  policy  dictated  by 
a  belief  in  his  client's  innocence.  During  the  whole 
course  of  his  cross-examinations  he  made  the 
strongest  insinuations  that  the  fellow  servants  of 
his  client  were  the  perpetrators  of  the  murder,  and 
that  the  policemen  were  participators  with  them  in 
a  subsequent  conspiracy  to  throw  suspicion  on  the 
prisoner,  chiefly  by  placing  a  pair  of  blood-stained 
gloves  in  his  valise,  which  were  not  discovered  until 
after  he  was  sent  to  prison.  All  of  this  made  it 
extremely  difficult  to  follow  Baron  Parke's  advice. 
To  use  after  the  confession  "all  fair  arguments  aris- 
ing on  the  evidence"  which  was  elicited  before  the 
confession,  was  all  but  impossible.  What  would 
have  been  fair  before  became  unjustifiable  after- 
ward. The  task  of  selecting  and  rejecting,  of  decid- 
ing what  might  and  what  might  not  be  used,  would 
have  puzzled  the  best  mind  even  after  long  and  care- 
ful consideration,  and,  it  would  seem,  in  the  excite- 
ment of  the  trial  Mr.  Phillips  failed  to  discriminate 
between  them.  It  is  asserted  that  in  his  arguments 
he  not  only  proclaimed  his  own  belief  in  his  client's 
innocence,  but  still  attempted  to  impute  the  crime 
to  the  other  servants,  finally  closing  by  a  threat  to 
the  jury  in  the  following  peroration: 

"/  speak  to  you  as  a  friend,  as  a  fellow-Christian,  and  I  tell 
you,  that  if  you  do  not  act  in  the  spirit  which  I  have  called 
upon  you  to  do,  that  the  deed  of  to-day  zvill  never  die  within 
you.     If  you  should  pronounce  your  decision  without  that 


APPENDIX.  215 

deep  and  profound  consideration  of  its  awful  import,  the 
error  which  you  have  fallen  into  will  pursue  you  with  re- 
morse to  the  latest  period  of  your  existence,  and  stand  against 
you  in  condemnation  before  the  judgment-seat  of  your  God. 
So  beware  what  you  do." 

Notwithstanding-  a  vigorous  denial  by  Mr.  Phil- 
lips and  his  friends  of  the  charges  last  recited,  it 
would  yet  seem,  from  the  reports  in  the  public  press, 
that  they  were  substantially  true  as  alleged,  and  his 
conduct  has  furnished  a  fruitful  theme  for  much 
subsequent  condemnatory  writing  by  the  moralists. 
While  we  must  make  due  allowance  for  him  on  ac- 
count of  the  positive  obligation  he  was  under  to 
pursue  the  defense  and  the  superlative  difficulty 
under  which  he  labored  in  so  doing,  we  must  yet 
agree  with  the  critics  in  their  assertion  that,  a  coun- 
sel who  so  far  forgets  his  office  as  to  support  false- 
hood, or  even  to  distort  the  evidence,  violates — not 
follows — his  duty  as  an  advocate. 

The  deductions  to  be  drawn  from  the  Courvoisier 
case  may  be  summarized  as  follows : 

An  attorney  is  bound  to  retain  a  case  and  con- 
tinue the  defense,  notwithstanding  he  may  ascertain 
during  the  course  of  the  trial  that  his  client  is  guilty. 

It  is  his  duty,  even  under  such  circumstances,  to 
screen  his  client  from  conviction  on  insufficient  evi- 
dence, and  to  employ  in  his  defense  all  fair  argu- 
ments. 

He  has  no  right,  even  though  the  facts  may  admit 
of  the  possibility  of  guilt  in  others,  to  cast  suspi- 


2l6  APPENDIX. 

cion  on  the  innocent,  noT  to  damage  the  character 
of  honest  witnesses. 

He  is  wholly  unjustified  in  asserting  his  own 
belief  in  his  client's  innocence,  knowing  at  the  time 
that  he  is  guilty. 

D. 

LEGAL    COMMERCIALISM. 

In  an  address  before  the  Section  of  Legal  Edu- 
cation of  the  American  Bar  Association,  at  its  ses- 
sion held  in  the  year  1894,  the  illustrious  author  and 
jurist,  Hon.  John  F.  Dillon,  while  discussing  the 
features  of  "The  true  professional  ideal,"  made  the 
following  pertinent  remarks : 

"There  is,  I  fear,  some  decadence  in  the  lofty  ideals  that 
have  characterized  the  profession  in  former  times.  There  is 
in  our  modern  life  a  tendency — I  have  thought  at  times 
very  strongly  marked — to  assimilate  the  practice  of  the  law  to 
the  conduct  of  commercial  business.  In  great  law  firms  with 
their  separate  departments  and  heads  and  subordinate  bu- 
reaus and  clerks  with  their  staff  of  assistants,  there  is  much 
resemblance  to  the  business  methods  of  the  great  mercantile 
and  business  establishments  situate  close  by.  The  true  law- 
yer— not  to  say  the  ideal  lawyer — is  one  who  begrudges  no 
time  and  toil,  however  great,  needful  to  the  thorough  mas- 
tery of  his  case  in  its  facts  and  legal  principles;  who  takes  the 
time  and  gives  the  labor  necessary  to  go  to  its  very  bottom, 
and  who  will  not  cease  his  study  until  every  detail  stands 
distinct  and  luminous  in  the  intellectual  light  with  which  he 
has  surrounded  it.  The  temptations  and  exigencies  of  a 
large  practice  make  this  very  difficult,  and  the  result  too 
generally  is  that  the  case  gets  only  the  attention  that  is 


APPENDIX.  217 

convenient  instead  of  that  which  it  truly  requires.  The  head 
of  a  great  firm  in  a  metropolitan  city,  a  learned  and  able 
man,  was  associated  with  another  in  a  case  of  much  com- 
plexity and  moment.  He  expressed  warm  admiration  of 
the  printed  argument  of  his  associate  counsel,  which  had 
cost  the  latter  two  months  of  laborious  work,  adding,  how- 
ever, that  he  could  not  have  given  that  much  time  to  it 
because,  commercially  regarded,  it  would  not  have  paid  him 
to  do  so." 

"It  is  unquestionably  the  duty  of  the  profession  to  pre- 
serve the  traditions  of  the  past — to  maintain  its  lofty  ideals 
— and  to  this  end  to  guard  against  what  I  may  perhaps  truly 
describe  by  calling  it  the  'commercializing'  spirit  of  the 
age.  The  utterance  of  Him  who  spake  with  an  authority 
greater  than  that  of  any  lawyer  or  judge,  'Man  lives  not  by 
bread  alone,'  should  never  be  forgotten  or  unheeded  by  the 
lawyer,  and  will  not  be  by  any  who  comes  within  the  cate- 
gory of  what  may  be  termed  the  'Ideal  Lawyer.'  " 


E. 

ETHICS  A  REQUIREMENT  OF  LEGAL  EDUCATION. 

As  previously  remarked  in  the  body  of  this  work, 
the  subject  of  Legal  Ethics,  as  a  required  study, 
has  for  some  time  past  engaged  the  attention  of 
lawyers  and  legal  educators.  At  the  session  of  the 
American  Bar  Association,  held  in  1894,  the  matter 
was  forcibly  presented  by  Mr.  Edmund  Wetmore, 
in  a  paper  on  the  "Requirements  of  Legal  Educa- 
tion," from  which  the  following  excerpt  is  made : 

"Closely  allied  to  the  study  of  the  principles  upon  which 
the  law  rests  is  the  question  of  legal  ethics.  The  influences 
that  make  not  only  a  capable  but  an  honest  and  honorable 


2l8  APPENDIX. 

lawyer  are  derived  primarily  from  individual  disposition  and 
character,  from  home  training,  from  the  standard  of  right 
and  wrong  that  prevails  in  the  bar  and  the  community  in 
which  he  lives;  but  of  such  paramount  importance  is  it,  not 
only  to  lawyers  themselves,  but  to  the  State  and  to  society, 
that  a  high  standard  of  professional  conduct  and  character 
should  be  maintained,  that  I  believe  that  every  law  course 
would  be  improved  that  should  include  a  brief  series  of 
lectures  from  those  whose  own  lives  and  character  entitle 
them  to  speak  with  authority,  the  object  of  which  should  be 
to  impress  upon  the  young  men  entering  the  profession  that 
the  highest  requirement  of  a  legal  education  is  to  make  a 
practitioner  whose  word  is  as  sacred  as  an  oath,  and  who 
would  no  more  seek  to  impose  upon  a  Court,  to  bring  a 
questionable  suit,  or  to  seek  success  by  resort  to  other  in- 
fluences than  evidence  and  argument,  than  he  would  enter 
the  court  room  to  ply  the  trade  of  a  pickpocket.  If  in  every 
college  there  is  a  chair  of  moral  philosophy,  I  can  see  no 
reason  why  there  should  not  in  every  law  school  be  a  chair 
of  legal  ethics." 

The  suggestion  was  received  with  much  favor  by 
the  association  and  at  the  meeting,  held  the  year  fol- 
lowing, the  Committee  on  Legal  Education,  through 
its  chairman,  Dr.  Austin  Abbott,  presented  a  report 
in  which,  among  other  things,  may  be  found  the 
following : 

"The  Committee  would  recommend,  in  accordance  with 
a  suggestion  made  in  a  paper  read  before  the  Section  of 
Legal  Education  at  its  last  meeting,  that  a  course  upon  Legal 
Ethics  be  introduced  in  the  law  school  curriculum.  It  is 
remarkable  that  this  has  been  already  done  in  so  few 
schools;  and  it  is  unnecessary  to  argue  the  need  of  a 
knowledge  of  legal  ethics  by  the  bar,  or  the  propriety  of 
instruction  on  this  subject  in  our  law  schools  in  order  that 
their  graduates  may  enter  the  profession  with  correct  ideas 


APPENDIX.  219 

of  the  duties  and  responsibilities  of  practitioners  to  one  an- 
other, to  their  clients,  to  the  courts,  and  to  the  public.  Such 
instruction  from  those  whom  they  had  learned  to  respect 
and  revere  could  not  but  have  a  lasting  influence  when 
received  by  young  men  at  a  time  when  their  minds  would 
be  peculiarly  impressionable,  and  might  save  them  from 
serious  errors  due  to  want  of  knowledge  and  experience." 

"It  may  be  said  that  there  is  no  need  of  special  instruction 
on  legal  ethics  as  a  distinct  part  of  a  course  of  legal  study; 
that  the  proprieties  of  professional  conduct  can  be  dwelt  on 
incidentally  during  the  study  of  equity,  evidence,  criminal 
law,  and  other  topics;  that  the  whole  law  course  should  be 
pervaded,  as  it  were,  with  the  inculcation  of  what  consti- 
tutes the  true  professional  ideal — the  highest  standards  of 
truth,  and  honor,  and  morality;  that  this  is  the  best  method 
of  teaching  professional  ethics,  and  renders  any  further 
instruction  unnecessary.  We  agree  that  the  true  teacher 
will  lose  no  occasion  to  point  out  to  his  pupils  the  principles 
which  should  guide  them  amid  the  perplexities  and  embar- 
rassments of  professional  life;  but  it  could  not  but  be  useful 
near  the  close  of  their  career  as  students  to  bring  together 
the  disconnected  threads,  and  in  a  brief  course  of  lectures 
(for  here  probably  all  will  agree,  instruction  by  cases  or  by 
text-books  will  not  alone  accomplish  the  object,  nor  will 
fear  of  examinations  be  the  best  stimulus  to  attention)  warn 
them  of  the  pitfalls  which  will  beset  their  way,  and,  with 
genuine  solicitude  and  sympathy,  make  plain  to  them  the 
path  of  duty,  of  honor,  and  of  safety." 

"Such  a  course  would  give  to  the  student  a  more  clear 
and  definite  conception  of  the  function  of  the  lawyer,  as 
being  in  its  highest  aspect  the  pursuit  of  truth  whether  in 
questions  of  fact  or  of  law.  It  would  show  him  the  noble 
scope  for  a  just  partisanship  for  his  client  within  the  honor- 
able limits  of  his  duty  to  the  court,  to  the  public,  and  to 
the  State.  It  would  enhance  the  wholesome  influence  upon 
him  of  a  sense  of  responsibility  as  an  ofifier  of  the  court, 
and  would  enlarge  his  appreciation  of  the  public  influence 
which  honorable  service  at  the  bar  always  brings." 

"Is   it   not    plain    that  without   specific   attention   to  this 


220  APPENDIX. 

subject  a  course  in  law,  however  extended  and  technical, 
will  leave  many  students  on  a  low  grade?  It  is  not  a  branch 
which  requires  time  in  proportion  to  its  importance,  and  on 
this  very  account  perhaps  has  been  too  much  neglected. 
In  some  schools  it  may  be  thought  best  to  treat  the  subject 
by  touching  upon  it  at  various  points  in  the  course  of  other 
subjects  which  suggest  it;  in  others  it  may  be  thought  best 
to  devote  a  short  period  to  its  distinctive  discussion,  but 
in  whatever  way  it  is  done  we  believe  that  some  clear  and 
definite  class  work  upon  the  rights,  the  duties  and  the  re- 
sponsibilities of  members  of  the  bar  would  be  found  an  imme- 
diate advantage  in  legal  education." 


INDEX. 


[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 
ABUSE, 

of  legal  process  unprofessional,  202. 
of  opposite  side  in  arguments,  198. 
ADVERTISING, 

ethical   rules   respecting,  92. 
by  professional  cards,  93. 
through  the  newspapers,  97. 
by  anonymous   announcements,  99. 
by  discussions  in  the  press,  107. 
by  letters  and  circulars,  109. 
by  word  of  mouth,  112. 
ADVERSE  EMPLOYMENT, 
may  not  be  accepted,  277. 
ADVICE, 

to  witnesses,  may  be  given  when,  183,  185. 
to  clients,  rules  with  respect  to,  255. 

resulting  in  commission  of  crime,  258. 
ADVOCACY, 

a  necessary  calling,  36. 

the  practice  of,  objections  to,  38. 

origin  and  early  history  of,  42. 

chivalric  spirit  of,  in  France,  Ap. 

character  of  early  forms  of,  117. 

compensation  may  be  taken  for.  121. 

essential   morality   of   practice   of,    158. 

something  more  than  means  of  livelihood,  126. 

effect  and  characteristics  of,  331. 
ADVOCATE, 

general  duties  of,  53. 

summary  jurisdiction  of  courts  over,  62. 
221 


222  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

AGREEMENTS, 

by  attorneys,  necessity  for  observance  of,  319. 

for  compensation,  effect  of,  127. 

implied,  by  acceptance  of  retainer,  245,  246. 

ANONYMOUS, 

announcements,  are  unprofessional,  99. 
ATTORNEY, 

distinguished  from  counsellor,  50. 

duties  and  obligations  of,  53,  56. 

may  reach  the  public,  how,  80. 

personal  solicitation  of  business  by,  86. 

compensation  of,  119. 

may  not  be  witness  in  his  own  case,  192. 

should  not  volunteer  opinions,  195. 

duty  of,  to  third  persons,  205. 

Brougham's   definition   of,   206, 

authority  and  powers  of,  241. 

liability  of,  for  want  of  skill,  245. 

relation  of,  to  client,  239. 

may  decline  retainer,  214,  259. 

duty  of  to  accused  persons,  217. 

may    accept    retainer    with    knowledge    of    prisoner's 
guilt,  220. 

duty  of  in  criminal  prosecutions,  228. 

retained  to  assist  in  state  trials,  232. 

disabilities  of,  251. 

opinions  and  advice  by,  255. 

conduct  of  cases  by,  262. 

may  not  represent  both  sides,  265. 

may  not  divulge  privileged  communications,  27a 

may  not  accept  adverse  employment,  277. 

may  not  withdraw  from  case,  278. 

should  not  assume  inconsistent  positions,  286. 

money  of  client  lost  by,  288. 

money  of  client  retained  by,  290. 

right  of  client  to  discharge,  292,  325. 

relations  of,  with  court,  294. 


INDEX.  223 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

ATTORNEY— Continued, 
conduct  of,  in  court,  297. 
conduct  of,  out  of  court,  300. 
may  criticise  court,  when,  304. 
must  not  deceive  court,  309. 
relations  of,  with  bar,  313. 

professional  courtesy  should  be  extended  by,  314. 
must  show  respect  for  age,  318. 
must  observe  his  agreements,  319. 
may  render  services  to  brother  attorneys,  322. 
may  institute  suits  against  attorneys,  323. 
must  not  interfere  with  other  attorneys'  business,  324. 
duty  of  in  cases  of  substitution,  325. 

BAD  DEBTS, 

advertisements  of  collection  of,  unprofessional,  104. 

BAR  SCHEDULES, 

will  affect  attorneys'  fees,  how,  141. 
BENCH  AND  BAR, 

relations  subsisting  between,  58,  294. 
BLOOD  MONEY, 

what  the  old  lawyers  say  concerning,  232. 
BOORN, 

brothers,  the  case  of,  227,  n. 
BRIBERY, 

of  witnesses,  what  is,  188. 
CARDS, 

how  displayed  and  used,  93. 

CASES, 

conduct  of  by  attorneys,  262. 

withdrawal  from  not  permitted,  278. 
CHAMPERTY, 

distinguished  from  contingent  fee,  145. 

ancient  doctrine  of,   144,  146. 
CIRCULARS, 

by  attorneys,  when  allowed,  109. 


224  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

CLIENT, 

relation  of  attorney  to,  238. 

is  bound  by  attorney's  action,  241. 

liability  of  attorney  to,  245. 

attorney  may  not  bargain  with,  251. 

opinions  given  to,  255,  258. 

communications  of  are  privileged,  270. 

money  of,  lost  by  attorney,  288. 

money  of,  retained  by  attorney,  290. 

right  of,  to  discharge  counsel,  292,  325. 

may  compel  counsel  to  follow  instructions,  317. 

enticement  of  by  attorneys,  324. 

COACHING, 

of  witnesses,  impropriety  of,  181. 

COMMERCIALISM, 

in  law,  the  spirit  of,  84,  92,  324. 
Mr.  Dillon's  remarks  upon,  Ap. 

COMPENSATION, 

principles  governing  the  right  of,  115. 

the  English  theory  of,  118. 

the  American  theory  of,  119. 

liability  for  devolves  on  whom,  123. 

service  may  be  refused  for  lack  of,  124. 

agreements  for,  how  construed,   127. 

extent  of,  and  considerations  afifecting  same,  130,  135. 

immoderate,   effect  of,    136. 

retaining,  from  funds  in  hand,  139. 

as  affected  by  local  rules,  141. 

dependent  on  success,  142. 

of  assigned  counsel,  151. 

forfeiture  of  the  right  of,  155. 

CONDUCT, 

professional,  legal  ethics  is,  2, 
in  eliciting  testimony,  169. 
in  examination  of  witnesses,  172. 
of  cases,  duty  of  attorney  in,  262. 


INDEX.  225 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

CONDUCT— Continued. 

in  dealings  with  clients,  251. 
in  criminal  trials,  217,  220. 
toward  judge,  in  court,  297. 
toward  judge,  out  of  court,  300. 
toward  fellow  practitioners,  313,  314. 
toward  the  aged,  318. 

CONSCIENCE, 

how  far  a  standard  of  right,  22. 

CONTEMPT, 

of  court,  punishment  for,  dT. 

CONTINGENT  FEES, 
doctrine  of,  142,  143. 
not  unlawful,  145,  146. 
amount  to  champerty,  when,  145. 
ethical  objections  to,  147. 
ethical  reasons  in  favor  of,  150. 

COURTESY, 

professional,  of  what  consisting,  314. 

demands  respect  for  age,  318. 

to  bench  must  always  be  shown,  297. 

COURTS, 

ethical  theory  in  regard  to,  298. 

relation  of  the  bar  to,  61,  296. 

summary  jurisdiction  of,  62. 

discipline  exercised  by,  65. 

conduct   of  attorneys  towards,   297. 

attorneys  must  not   bring  discredit  upon,    103. 

production  of  testimony  in,  168. 

tampering  with  records  of,  200. 

abuse  of  process  of,  202. 

actions  of  may  be  criticised,  304. 

deception  of  merits  punishment,  309. 

COURVOISIER, 

defense  of,  comments  on,  Ap. 


226  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

CRIME, 

effect  of  advising  commission  of,  258. 
communications    respecting   commission    of,    not   priv- 
ileged, 275. 

CRIMINALS, 

defense  of,  generally  considered,  208. 

retainer  by,  may  be  declined,  214. 

retainer  by,  may  be  accepted,  215. 

ancient  rules  with  respect  to,  211. 

defense  of,  no  violation  of  morals,  213. 

professional  duty  to,  217,  218. 

prosecution  of,  duty  in,  228. 

prosecution  of,  by  private  counsel,  232. 

association  with,  lowers  professional  standing,  235. 

CRIMINAL  LAW, 

as  a  specialty,  objections  to,  235. 

CRITICISM, 

of  courts,  when  allowed,  304. 

DECEIT, 

of  court  by  attorneys,  184,  309. 

DEFINITION, 

of  ethics  generally,  4,  6,  17,  19. 

of  legal  ethics,  2,  29,  30,  48. 

of  law,   14. 

of  morals,   16,   18,   19. 

of  ethical  concepts,  7,  9,  ID,  14,  21,  23. 

of  conscience,  22. 

of  public  opinion,  23. 

of  advocacy,  39,  41,  56. 

of  courts,  298. 

of  disbarment,  65. 

of  suspension,  65. 

of  contempts,  67. 

of  retainer,  122,  239. 

of  contingent  fee,  142. 

of  practice,  157. 


INDEX.  227 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

DEFINITION— Continued. 

of  privileged  communications,  270. 
of  professional  courtesy,  316. 

DISABILITIES, 

created  by  the  relation  of  attorney  and  client,  251. 
of  the  judicial  station  in  resenting  attacks,  308. 

DISBARMENT, 

consists  of  what,  65. 

may  be  inflicted,  when,  65,  68,  T2>,  74- 

regarded  as  an  act  of  protection,  69. 

DISCHARGE, 

of  counsel,  client's  right  of,  292,  325. 
DISCIPLINE, 

exercised  by  courts  over  attorneys,  62. 

method  of  exercise  of,  65. 

nature  of  power  of,  69. 

does  not  afifect  legal  rights,  70. 

grounds  for  exercise  of,  T^i  102,  184,  277. 

for  unofBcial  misconduct,  74. 

misconduct  not  reached  by,   ^^. 

for  unprofessional  advertising,  102,  103. 

for  retaining  money  of  client,  71,  140,  290. 

for  fraud  or  negligence,  155,  156,  251. 

for  coaching  witnesses,   184. 

for  bribing  witnesses,  188. 

for  conduct  out  of  court,  301a. 

for  tampering  with  records,  200. 

for  withdrawing  papers  from  files,  283. 

for  advising  commission  of  crime,  258. 

for  accepting  adverse  employment,  277. 

for  disclosing  privileged  communications,  ^2. 
DISCUSSION, 

of  legal  topics  in  the  public  press,  107. 

DIVORCES, 

procuring  of,  proper  legal  work,  lOO. 
advertising  to  procure,  unprofessional,  100,  loi. 


228  INDEX. 

[THE  REFERENCES   ARE  TO  THE  SECTIONS.] 

DUTY, 

the  foundation  of  ethics,  i. 

of  what  consisting,  4n. 

professional,  scope  of,  35. 

to  third  persons,  205. 

to  persons  accused  of  crime,  217. 

to  clients,  241, 

to  courts,  297. 

to  the  bar,  314. 

ETHICS, 

derivation  of  the  term,  5. 
definition  of,  6. 
general  theories  relating  to,  7. 
legal,  defined  and  distinguished,  30. 
a  requirement  of  legal  education,  Ap. 

ETHICAL  SYSTEMS, 

are  founded  upon  what,  6,  7. 
objective,  of  what  consisting,  9. 
subjective,  of  what  consisting,  10. 

EVIDENCE, 

ethical  theories  with  respect  to,   168. 

improper,  ofifer  of  an  offense,  179. 
EXAMINATION, 

of  witnesses,  object  of,  171,  172. 

in  chief,  how  conducted,   173. 

cross,  objects  and  method  of,  175. 
FEES, 

of  counsel,  theories  respecting,  116,  118,  119. 

may  be  recovered  as  of  right,  122. 

liability  for,  123. 

agreements  respecting,  may  be  made  when,  127. 

extent  of,   130. 

considerations  affecting  the  fixing  of,  135. 

immoderate,  views  in  regard  to,  136. 

may  be  retained  from  funds  in  hand,  139. 

affected  by  local  rules,  how,  141. 


INDEX.  229 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

FEES — Continued. 

contingent,  when  allowed,   142. 

counsel  for  pauper  prisoner  may  not  claim,  151. 

forfeiture  of  right  to,  155. 

FINES, 

may  be  imposed,  when,  66,  67. 

FIRM, 

services  of,  may  be  rendered  how,  250. 

GRATUITY, 

services  rendered  as,  124. 

GUILT, 

of  prisoner,  knowledge  of,  220. 

GULLIVER, 

story  told  by,  to  grey  horse,  I58n. 

HALE,    SIR    MATTHEW, 

conduct  with  respect  to  witches,  2i3n. 

rules  of  conduct  prescribed  by,  Ap. 
HONORARIUM, 

taken  by  English  barristers,   118. 

is  unknown  in  America,  120. 
INCONSISTENT  POSITIONS, 

attorney  should  not  assume,  286. 

with  respect  to  law,  allowable,  287. 
INTERFERENCE, 

by    attorneys    with    others'    clients,    324. 
JUDGE, 

position  of  in  judicial  system,  294. 

attorneys  should  pay  respect  to,  297,  300. 

criticism  of  by  lawyers,  304. 

attempts  to  influence,  unprofessional,  303. 
JUDICIAL  OFFICE, 

nature  and  importance  of,  294,  298. 
JURISDICTION, 

of  courts  over  attorneys,  62. 


230  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

JURISPRUDENCE, 

the  relation  of,  to  ethics,  7. 

JURY, 

arguments  before,  how  conducted,  196. 

LAW, 

general  definition  of,    14. 

distinguished  from  morals,  12. 

obedience  to,  a  moral  duty,  24. 
LEGAL  ETHICS, 

definition   of,    i,   2,   31. 

distinguished  from  ethics,  30. 
LEGAL  LABOR, 

divisions  of,  in  England,  50. 
LEGAL  FRATERNITY, 

the  lawyers  an  order  or,  313. 
LIABILITY, 

for  fees,  attaches  to  whom,  123,  239. 

for  want  of  skill  by  attorney,  245. 
MISCONDUCT, 

official,  court  may  punish  for,  62. 

unofficial,  when  ground  for  discipline,  74. 

without  summary  discipline,  yy. 
MISSTATEMENTS, 

by  counsel  unprofessional,  310. 
MONEY, 

lost  in  hands  of  attorney,  288. 

duty  in  safe  keeping  of,  289. 

retained  by  attorney,  139,  290. 
MORALITY, 

in  practice,  methods  to  be  observed,  158. 

defense  of  criminals  no  oflfense  against,  213. 
MORALS, 

distinguished  from  law,  12. 

distinguished  from  ethics,  17. 

the  standard  of,  21. 


INDEX.  231 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

MORAL  SCIENCE, 
first  inquiry  in,  8. 
various  theories  of,  9. 
distinguished  from  jurisprudence,  12. 
distinguished  from  moraHty,  17. 

NEWSPAPERS, 

advertising  in,  unprofessional,  97. 
discussions  in,  when  allowed,  107. 

NOLLE  PROSEQUL 

should  be  entered,  when,  231. 

OVERCHARGE, 

by  attorneys,  views  respecting,  136. 

POWERS, 

of  attorney  over  client's  matters,  241. 

acts  in  excess  of,  243. 
PRACTICE, 

definition  of,  157. 

of  advocacy,  essential  principle  of,  38. 

morality  an  essential  ingredient  of,  158. 

in  criminal  cases,  208. 
PRIVILEGED  COMMUNICATIONS, 

efifect  and  extent  of,  270. 
PROCESS, 

abuse  of,  is  unprofessional,  202. 
PROFESSIONAL  OPINIONS, 

when  and  how  given,  255. 

not  privileged  when,  275. 
PROFESSIONAL  DUTY, 

scope  and  nature  of,  38,  53. 

early  concepts  with  respect  to,  48. 

largely  undefined,  53,  55. 

prescribed  for  the  advocates  of  Geneva,  53n. 

prescribed  by  oath  of  offtce,  56. 

courts  may  enforce,  62. 

discipline  for  derelictions  from,  65. 


232  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

PROFESSIONAL  DUTY— Continued, 
to  third  persons,  205. 
to  persons  accused  of  crime,  217. 
to  judges  and  officers  of  courts,  103,  207. 
to  members  of  the  bar,  314. 

PROSECUTION, 

of  criminals,  how  conducted,  228. 
private  counsel  assisting  in,  232. 

PUBLICITY. 

of  calling,  how  effected,  80. 

PUBLIC  OPINION, 

definition  of,  23. 

may  be  considered  as  authority,  26. 
QUANTUM  MERUIT, 

compensation  may  be  recovered  on,  132,   134, 

RECORDS, 

tampering  with,  an  offense,  200. 
RELATION, 

of  attorney  and  client,  2y]. 

disabilities  imposed  by,  251. 
duties  involved  in,  238,  245. 
how  established,  239. 

of  bench  and  bar,  58,  294. 

amenities  involved  in,  297,  300. 

of  members  of  the  bar,  313,  314. 
RETAINER, 

in  criminal  cases,  214. 

in  civil  cases,  when  refused,  259. 

may  not  be  taken  from  both  sides,  265. 

how  established,  122,  239. 
SELF  PRAISE, 

may  be  indulged  in  when.  112. 
SERJEANTS. 

origin  of  order  of,  45. 

rights  and  duties  of,  48. 


INDEX.  233 

[THE  REFERENCES  ARE  TO  THE   SECTIONS.] 

SERVICES, 

attorney  may  demand  compensation  for,  120,  122. 
rendered  to  attorneys,  rules  respecting,  2^2. 
rendered  on  contingent  fee  allowable  when,  146. 
liability  for,  rests  only  with  party  employing,  123. 
should  be   rendered  gratuitously,  when,   124. 
agreements  for   compensation  for,   127. 
ingredients  that  enter  into,   135. 

SOLICITATION, 

of  clients,  rule  in  England,  82. 

rule  in  America,  84. 
by  personal  application,  86. 
by  advertising,  go,  97. 
by  cards,  93. 

by  anonymous  announcements,  99. 
by  letters  and  circulars,  109. 
of  clients  of  other  attorneys,  324. 

SUBSTITUTION, 

of  attorneys,  rules  respecting,  325. 

SUITS, 

against  attorneys,  when  and  how  brought,  323. 

SUSPENSION, 

of  what  consisting,  65. 

TESTIMONY, 

production   of,  how  accomplished,   168. 
offers  of  improper,  how  regarded,  179. 

THIRD  PERSONS, 

duty  of  attorney  with   respect  to,  205. 

doctrine  of  Lord  Brougham  respecting  duty  to,  206. 

TRANSACTIONS, 

between  attorney  and  client,  251, 

VERACITY, 

duty  of  attorneys  with  respect  to,   i6r. 


234  INDEX. 

[THE  REFERENCES  ARE  TO  THE  SECTIONS.] 

WITNESSES, 

duty  of,  with  respect  to  truth,  170. 
examination  of,  how  conducted,  173. 
coaching  of,  not  permitted,  181. 
may  be  advised  to  what  extent,  185. 
payment  of,  constitutes  bribery  when,  188. 
attorneys  may  not  be,  in  their  own  cases,  192. 

WITHDRAWAL, 

of  attorney  from  case,  278. 

of  appearance  or  pleadings,  283. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  851  395    4 


m^^^^^^. 


